Guy Val Quam v. State ( 2007 )

                                                NO. 12-06-00186-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

GUY VAL QUAM,    §                      APPEAL FROM THE 114TH

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      SMITH COUNTY, TEXAS

MEMORANDUM OPINION

            Guy Val Quam appeals his conviction for aggravated sexual assault of a child, for which he was sentenced to imprisonment for life. In three issues, Appellant contends that the trial court erred in finding the child witness competent to testify and also argues that the evidence is neither legally nor factually sufficient to support his conviction.  We affirm.

Background

            Appellant and his family were friends with M.K. and her family.  M.K. spent time at Appellant’s home because Appellant’s wife and daughter babysat her and other children.   At times Appellant was alone with the children being watched, including M.K. Sometime in 2003, when M.K. was two years old, M.K. told her mother that “[Appellant] plays privates with me.” M.K.’s mother discussed M.K.’s statement with Appellant’s wife, but took no further action.  In 2005, M.K. and her mother saw Appellant at a restaurant. After Appellant left, M.K. told her mother that “[Appellant] plays privates with me and that’s not appropriate.” Several days later, M.K.’s mother inquired further, and M.K. said that Appellant put his hand inside of and licked her “private” when they were in a closet in Appellant’s garage.  M.K. identified her “private” as her vagina.

            M.K.’s parents took M.K., then four years old, to a counselor.  The counselor suggested that the police be contacted.  The mother did so, and the police conducted an investigation.  Part of the investigation included a videotaped interview with a representative of the Texas Department of Protective and Regulatory Services.

            Following the investigation, Appellant was charged by indictment with aggravated sexual assault of a child.¹  Appellant pleaded not guilty, and the case proceeded to trial.  Before M.K. testified, the trial court conducted a hearing on her competency. The trial court found that M.K. was competent to testify, and M.K. testified without objection.  After hearing the evidence, the jury found Appellant guilty as charged.  The court held a separate punishment hearing.  Both sides presented evidence at that hearing, and the jury assessed Appellant’s punishment at imprisonment for life.  The trial court sentenced Appellant accordingly, and this appeal followed.

Competency

            In his first issue, Appellant argues that the trial court erred in allowing M.K. to testify.  Appellant alleges that there was no evidence that M.K. appreciated the difference between the truth and a lie and no evidence that M.K. could recall the events about which she was to testify.

Standard of Review

            As a general rule, every witness is competent to testify. Tex. R. Evid. 601(a).  A child is competent to testify unless it appears to the trial court that the child does not possess sufficient intellect to relate the transaction about which the child will testify.  Tex. R. Evid. 601(a)(2);  Dufrene v. State, 853 S.W.2d 86, 88 (Tex. App.–Houston [14th Dist.] 1993, pet. ref’d).  The trial court determines whether a child is competent to testify based on the capacity of the child to 1) observe intelligently the events in question at the time of the occurrence, 2) recollect the events, and 3) narrate the events.  Dufrene, 853 S.W.2d at 88-89.

            Generally, a trial court is given wide discretion in determining admissibility of evidence.  See Druery v. State, No. AP-74,912, 2007 Tex. Crim. App. LEXIS 392, at *26 (Tex. Crim. App. Apr. 4, 2007).  We review a trial court’s decision that a witness is competent to testify for an abuse of discretion.  See Broussard v. State, 910 S.W.2d 952, 960 (Tex. Crim. App. 1995).  As part of our review, we consider all of the trial testimony as well as the preliminary competency examination of the child witness to determine if the trial court abused its discretion.  See Clark v. State, 558 S.W.2d 887, 890 (Tex. Crim. App. 1977). Inconsistencies or conflicts in a child’s testimony do not automatically render the child incompetent to testify, but instead affect the weight to be given to the child’s testimony.  See Upton v. State, 894 S.W.2d 426, 429 (Tex. App.–Amarillo 1995, pet. ref’d).

Waiver

            To preserve a complaint for appellate review, a party must present the complaint to the trial court with sufficient specificity to make the trial court aware of the complaint.  See Tex. R. App. P. 33.1.  Rule 33.1 ensures that the trial court had the opportunity to correct its own errors before a party seeks appellate review.  See Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim. App. 2001). For an objection to meet the “sufficient specificity” requirement, the party must “let the trial judge know what he wants, why he thinks himself entitled to it, and . . . do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.”  Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). Unless a party obtains a running objection or requests a hearing outside the presence of the jury, a party is required to continue to object each time inadmissible evidence is offered.  See Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003).

            Appellant did not object to M.K.’s testimony. Before M.K. testified, the court conducted a hearing to determine if M.K. was competent to testify.  Appellant did not object to M.K.’s testimony outside the presence of the jury, nor did he object when she testified with the jury present.  Therefore, Appellant did not preserve his complaint about the trial court’s decision to allow M.K. to testify.  See Tex. R. App. P. 33.1.

            Even if Appellant had preserved his complaint, we see no error. Although M.K.’s testimony contained conflicting answers, that does not, in itself, make her an incompetent witness.  See Dufrene, 853 S.W.2d at 89.  M.K. consistently testified that Appellant put his hand in her vagina, and she consistently identified the location of the crime as Appellant’s garage.  After reviewing the entire record, we conclude that even if the complaint had been preserved, the trial court did not abuse its discretion when it determined that M.K. had the capacity to observe, recollect, and truthfully describe the events that were the basis of her testimony.  Appellant’s first issue is overruled.

Evidentiary Sufficiency

            In his second and third issues, Appellant argues that the evidence is neither legally nor factually sufficient to support the conviction. 

Legal Sufficiency

            Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d).  The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson v.  State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury’s verdict.  Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186.  A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court.  See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).

            The sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).  Such a charge would include one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.”  Id.  As alleged in the indictment, the State was required to prove that Appellant intentionally or knowingly caused the penetration of the female sexual organ of a child, fourteen years of age or younger and not his spouse, with his hands and fingers.  See Tex. Penal Code Ann. art. 22.021.

            In the case at hand, the record reflects that Appellant put his hand inside M.K.’s vagina.  M.K. testified that Appellant put his hand inside her “private.”  M.K.’s mother testified that M.K. told her Appellant had put his hand inside of and licked M.K.’s vagina.² The uncorroborated testimony of a child sexual abuse victim alone is sufficient to support a conviction for aggravated sexual assault of a child.  Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2006); O’Hara v. State, 837 S.W.2d 139, 141–42 (Tex. App.–Austin 1992, pet. ref’d).

            Examining the aforementioned evidence in the light most favorable to the jury’s verdict, we conclude that the jury could have determined beyond a reasonable doubt that Appellant  committed the offense of aggravated sexual assault of a child. Accordingly, we hold that the evidence was legally sufficient to support the conviction.  Appellant’s second issue is overruled.

Factual Sufficiency

            Turning to Appellant’s contention that the evidence is factually insufficient to support the trial court’s judgment, we must first assume that the evidence is legally sufficient under the Jackson standard.  See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).  We then consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact.  See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).  Although we are authorized to disagree with the jury’s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, our evaluation should not substantially intrude upon the jury’s role as the sole judge of the

weight and credibility of witness testimony.  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).  Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (Evidence is factually insufficient only when reviewing court objectively concludes that the great weight and preponderance of the evidence contradicts the jury’s verdict.).

            In the instant case, Appellant argues that M.K.’s testimony was unworthy of belief because it was inconsistent with her other statements and because M.K. was not competent to testify.  Appellant argues that the recollection of a five year old of events that happened when she was a toddler is insufficient to support the jury’s finding.  Further, Appellant notes that M.K. placed the location of the crime as an attic in Appellant’s garage when she was interviewed prior to trial.  The evidence introduced at trial showed that the attic in Appellant’s garage did not have a pull down ladder as described by M.K. in the interview.

            Nonetheless, we must consider this evidence in the context of the record as a whole.  We already have held that M.K.’s testimony could be considered.  Although she referred to an attic in one of the interviews, M.K. testified that the crime occurred in a closet in Appellant’s garage. Likewise, in her statement to her mother, M.K. said that the crime occurred in the closet, but did not mention the attic.  Appellant’s garage contained a closet or small room that could be locked from the inside. Additionally, M.K. consistently testified that Appellant put his hand inside her sexual organ.  M.K. told her mother that Appellant had put his hand inside her sexual organ.

            Our review of the entirety of the record, with consideration given to all of the evidence, both for and against the jury’s finding, has not revealed any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction clearly wrong or manifestly unjust.  Therefore, we conclude that the jury could have reasonably found that Appellant committed aggravated sexual assault against M.K.  See Wesbrook v. State, 29 S.W.3d 103, 111–12 (Tex. Crim. App. 2000) (generally jury determines weight to give testimony of a witness and resolution of any conflicts in the evidence); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (jury may believe all, some, or none of a witness’s testimony).  The evidence is factually sufficient to support the trial court’s judgment.  Appellant’s third issue is overruled.

Disposition

            Having overruled Appellant’s first, second, and third issues, we affirm the trial court’s judgment.

                                                                                                    BRIAN HOYLE   

                                                                                                               Justice

Opinion delivered April 25, 2007.

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

(DO NOT PUBLISH)

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¹ See Tex. Penal Code Ann. art. 22.021 (Vernon 2006).

² M.K.’s mother testified that M.K. was younger than fourteen and not his spouse at the time of the alleged sexual assault.