Nelson, Robert Jamey v. State ( 2006 )

Affirmed and Memorandum Opinion filed May 25, 2006

Affirmed and Memorandum Opinion filed May 25, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00413-CR

NO. 14-05-00414-CR

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ROBERT JAMEY NELSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 10^th District Court

Galveston County, Texas

Trial Court Cause No. 03CR1943 & 03CR1944

M E M O R A N D U M   O P I N I O N

Appellant, Robert Jamey Nelson, appeals his convictions on two counts of aggravated sexual assault of a child. See Tex. Pen. Code Ann.' 22.021(a)(1)(B)(i) & (ii) (Vernon 2003). These matters were consolidated for trial. After pleading not guilty, appellant was found guilty by a jury on both counts. Appellant was sentenced by the jury to five years= probation on his conviction for violating Tex. Pen. Code Ann. '22.021(a)(1)(B)(ii) in trial court cause number 03CR1943, and five years= confinement in the Institutional Division of the Texas Department of Criminal Justice for violating Tex. Pen. Code Ann. '22.021(a)(1)(B)(i) in trial court cause number 03CR1944. Appellant asserts two issues on appeal: (1) the trial court erred in refusing appellant access to the State=s records tracking venire members= past criminal jury service; and (2) the evidence was factually insufficient to support either guilty verdict. We affirm the judgments in both cases.

Factual and Procedural Background^[1]

At the time appellant was accused of sexually assaulting K.J., the child was four years old. Appellant was living with Cheneathea Johnson, K.J.=s mother, at the time in question. The State charged appellant with intentionally causing his sexual organ to penetrate K.J.=s anus and mouth.

Shirley Ann Davis was the first witness. Davis testified that K.J. frequently stayed at her house. On November 18, 2002, during one of these visits, Davis testified K.J. told her that appellant, who was living with K.J.=s mother at the time, had made her suck his penis and Adrink all the white hot soup.@ After informing K.J.=s mother, the incident was reported to police.

Carmen Crabtree, from the Advocacy Center for children in Galveston, interviewed K.J. on November 22, 2002, and testified at trial. Crabtree=s interview of K.J. was videotaped and the videotape was played for the jury. During the interview Crabtree questioned K.J. about her names for various body parts for both males and females. Pointing to a picture, K.J. identified a male body part in the vicinity of the penis as a Atail.@  During the course of the interview, K.J. denied several times that anything had happened to her. However, K.J. did state that (1) she had told Davis what had happened and Crabtree could ask Davis; and (2) appellant=s tail had touched her somewhere. Crabtree admitted it was rare for a child to deny an incident after making an allegation. In Crabtree=s experience, there were several possible explanations as to why a child would do this. First and foremost was the possibility that nothing had happened to the child. Second, in response to the reaction to the revelation by those closest to the child, the child decides he or she does not wish to discuss it further. The final possible explanation is that someone has pressured the child to say nothing had happened.

K.J., now six years of age, testified via closed circuit television. K.J. confirmed that she knew the difference between the truth and a lie. K.J. identified Davis as the person to whom she told what appellant had done to her. K.J. also testified that she told Davis about the incident Abecause it really happened to [her].@ K.J. also told the jury that she did not like appellant living with them Abecause he always messed with us.@ K.J. also testified that appellant played games with her. K.J. also admitted that it was not the truth when she told Crabtree nothing had happened to her.

On December 3, 2002,  K.J. was examined at the ABC Center, part of the University of Texas Medical Branch at Galveston (AUTMB@). The ABC Center is a specialized facility for examining children who might be victims of physical or sexual abuse. The examination of K.J. was performed by Joy Blackmon, a physician=s assistant. The medical records of Blackmon=s examination were admitted into evidence without objection as State=s Exhibit Two. Within the medical records, Blackmon reported K.J. told her A[appellant] had stuck his tail in my mouth.@ K.J. also told Blackmon that she was afraid of appellant. Finally, K.J. told Blackmon: A[appellant] put his tail in my butt. He don=t do it all the time. I mean in my butt, where I poop. It hurt. His tail had white on it.@ Blackmon performed an examination of K.J.=s genital and anal areas and took high magnification photographs with a colposcope of those areas. Copies of those photographs were part of State=s Exhibit Two.  Blackmon=s diagnosis was that the rectal examination was abnormal, and that K.J. was a victim of child sexual abuse.

Dr. James Lukefahr, the director of the ABC Center and professor of medicine at UTMB, reviewed K.J.=s medical records, including the photographs, and testified at trial. Lukefahr confirmed Blackmon=s diagnosis and concluded: A[p]hotos depict the anal dilatation to about 2 x 2 centimeters in two of the three frames described in the exam record. [The anal dilatation] is an abnormal finding considered concerning for sexual abuse and is consistent with the history of recent anal penetration.@^[2] Lukefahr stated that the use of the term Aconcerning for sexual abuse@ leaves open the possibility of other causes, but in the majority of cases, a finding of anal dilatation is felt to be the result of sexual abuse. Under cross-examination, Lukefahr admitted that, in his experience, anal dilatation is most frequently noted when the sexual abuse has happened fairly recently and that over time, weeks or months, the finding typically does go away. Also, Lukefahr testified there can be indicators of sexual abuse in the mouth, which can be seen if the victim is examined within a day or two of the assault, Lukefahr admitted there were no such indicators found in K.J.=s mouth.

Detective Kristi Anguiano of the La Marque Police Department, investigated the allegations against appellant. She took the statements of Davis, the outcry witness, and K.J.=s mother. In addition, she interviewed appellant when he voluntarily appeared to give a statement.

Appellant testified in his own defense. According to appellant he commenced living with K.J.=s mother sometime in September 2002. Appellant testified that K.J. frequently visited and stayed with Davis and did not want to return home from Davis= house. Appellant denied sexually assaulting K.J., instead he asserted he was visiting his children in Port Arthur at the time the assault was alleged to have occurred. Appellant testified his brother, James Nelson, drove him to Port Arthur on October 29, 2002, and that he did not return to La Marque until sometime in December 2002. Initially appellant testified he voluntarily gave his statement to the La Marque Police on August 25, 2003, but during cross-examination, he changed the time to a date after he was diagnosed with cancer in January 2003. Later, he changed his testimony again, this time to December 18, 2002. During cross-examination, appellant testified he had no problems with K.J. and denied that he played games with her as she was not his child. Appellant admitted that, at times, he was briefly left alone with K.J. and her younger sister, but never with just K.J.

The final witness during the guilt/innocence phase of the trial was appellant=s brother James Nelson. Nelson testified that prior to October 31, 2002, appellant asked him to drive appellant to Port Arthur to see appellant=s children. Nelson agreed to do so and picked appellant up at Cheneathea Johnson=s house and drove appellant to appellant=s wife=s residence in Port Arthur. Nelson explained that appellant=s initial plan was to stay in Port Arthur for two weeks, but appellant called Nelson and informed him that he was going to stay longer. Sometime in the first week or two of December 2002, appellant called Nelson and asked him to pick him up and drive him back, which Nelson did.

The jury found appellant guilty of both counts of aggravated sexual assault. After hearing the evidence during the punishment phase, the jury assessed punishment at five years= confinement in the Institutional Division of the Texas Department of Criminal Justice for violating Tex. Pen. Code Ann. '22.021(a)(1)(B)(i)^[3] and five years= confinement in the Institutional Division of the Texas Department of Criminal Justice for violating Tex. Pen. Code Ann. '22.021(a)(1)(B)(ii),^[4] with a recommendation that the sentence be probated. The trial court accepted the jury=s verdicts and entered judgments on the jury=s findings. Appellant filed and later withdrew a motion for new trial, and this appeal followed.

Discussion

I. The District Attorney=s Juror Database

In his first issue, appellant contends the trial court erred when it denied appellant=s motion to allow appellant to inspect the juror voting history database allegedly created and possessed by the State=s prosecutor and which appellant alleges contains data regarding venire members= prior jury service, including how they voted in previous criminal trials. Appellant contends this database gave the State an unfair advantage as this information was unavailable to appellant by law, and therefore appellant did not have the same information as the State when selecting the jury. Appellant contends this denied appellant his right to an impartial trial by a jury of his peers. We disagree.

Prior to voir dire, appellant made an oral motion for access to the database. Appellant argued to the trial court that the juror information allegedly contained in the database was Aunavailable to [appellant] by law during his voir dire.@ The State responded that the database was attorney work product and did not have to be disclosed to appellant. In addition, without specifying exactly where, the State argued the information contained in the database was available through other sources. The trial court, finding the database was attorney work product, overruled appellant=s oral motion. As the database at issue is not contained in the record and appellant did not develop a record of what, if anything, was in the database, we have no basis upon which to determine whether the database was subject to any privilege or was otherwise immune from disclosure.

Assuming, arguendo, that the database contained information about the prospective jurors= prior criminal jury service, the State generally has no obligation to furnish defense counsel with that information. See e.g., Etheridge v. State, 903 S.W.2d 1, 7 (Tex. Crim. App. 1994); Martin v. State, 577 S.W.2d 490, 491 (Tex. Crim. App. 1979); Helton v. State, No. 14-03-00078-CR, 2004 WL 794327, at *2B3 (Tex. App.CHouston [14th Dist.] 2004, no pet.)(not designated for publication). Here, appellant asserts that, as a result of the database, the State had an unfair advantage as the juror information allegedly contained in the database was unavailable by law to appellant.  Appellant cites to no authority in support of this argument. First, appellant failed to present to this Court any authority for his argument that any advantage allegedly gained by the State=s possession of this database is grounds to require disclosure by the State. Second, a review of the case law and the record does not show that appellant was denied by law or any action of the trial court from gaining access to this information directly from the potential jurors during voir dire. The case law suggests that it is within the trial court=s discretion whether to allow questions about a potential juror=s prior jury service during voir dire.^[5] Therefore, it was appellant=s obligation to ask questions calculated to bring out information from prospective jurors during voir dire that appellant believed would uncover potential prejudice or bias. See Armstrong v. State, 897 S.W.2d 361, 363B364 (Tex. Crim. App. 1995) (en banc). The record shows appellant made his motion for access to the database, and the trial court denied the motion prior to voir dire. The record also shows appellant did not attempt to question the prospective jurors about prior criminal jury service during voir dire, and thus, there was no action by the trial court to prevent appellant from obtaining that information from the prospective jurors themselves. Appellant chose not to do so. Without a bill of exception, we cannot accurately evaluate this alleged error. Tex. R. App. P. 33.2. Appellant=s first issue is overruled.

II. Factual Insufficiency of the Evidence

In his second issue on appeal, appellant argues the trial court erred when it denied appellant=s motion for directed verdict as there is factually insufficient evidence to support the verdicts.^[6] We disagree.

A. Standard of Review

When evaluating a challenge to the factual sufficiency of the evidence, we review all of the evidence in a neutral light and inquire whether 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). The evidence may be factually insufficient in two ways: (1) when considered by itself, the evidence may be too weak to support a finding of guilt beyond a reasonable doubt; and (2) when balanced against the evidence supporting the verdict, the contrary evidence may be so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484B85. In conducting the factual sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 481B82. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). In conducting a factual sufficiency review, we must discuss the evidence  appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

B. The Evidence is Factually Sufficient to Support Appellant=s Convictions

Appellant attacks the factual sufficiency of the evidence by arguing that K.J.=s trial testimony and the videotape of the interview conducted at the Advocacy Center fall short of the level of proof required for conviction because, in appellant=s view, in both instances K.J. testified that nothing improper happened. Appellant concedes there is evidence in the record supporting the verdicts, specifically the testimony of Shirley Ann Davis, the outcry witness, and medical records from the ABC Center. This evidence is insufficient in appellant=s view as it was not evidence from K.J. herself that appellant had sexually assaulted her.

Initially, we review the record for evidence supporting the guilty verdicts. Davis testified that on November 18, 2002, K.J. told her appellant had sexually assaulted her. In State=s Exhibit Two, the ABC Center medical records, Blackmon, the ABC Center physician=s assistant who examined K.J.,  reported that K.J. told her that A[appellant] had stuck his tail in my mouth.@^[7] K.J. also told Blackmon that she was afraid of appellant. Finally, K.J. told Blackmon: A[appellant] put his tail in my butt. He don=t do it all the time. I mean in my butt, where I poop. It hurt. His tail had white on it.@ This examination occurred on December 3, 2002. Dr. Lukefahr=s testimony that he reviewed the ABC Center medical records and confirmed that K.J. was the victim of sexual assault also support the jury=s verdict. Dr. Lukefahr also testified that while anal dilatation is noticed most frequently when the sexual abuse is recent, it can last for weeks or months after the sexual abuse. This evidence shows that the sexual assaults on K.J. could have occurred prior to appellant=s departure for Port Arthur in late October 2002. In both the Advocacy Center interview and during her trial testimony, K.J. confirmed that she told Davis about the assaults and that they Areally happened.@ Finally, during the Advocacy Center interview, K.J. stated that appellant=s Atail@ had touched her somewhere. This evidence, when viewed in a neutral light and standing by itself, is factually sufficient to support appellant=s convictions. See Zuniga, 144 S.W.3d at 484B85.

Next, we must balance the evidence supporting the verdict with the contrary evidence to determine if the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. The contrary evidence includes the fact that K.J. did not specifically state, during the Advocacy Center interview or during her trial testimony, that appellant had sexually assaulted her. It also includes K.J.=s outright denial, during the Advocacy Center interview, that anything had happened to her. Crabtree, who conducted the Advocacy Center interview, testified that such a denial is unusual if something had actually happened. According to Crabtree, the first reason why a child would deny an assault had happened after making an accusation, is that it never actually happened. Appellant testified that he did not sexually assault K.J. Appellant and appellant=s brother testified that appellant was in Port Arthur from late October until the first or second week of December 2002, implying appellant was not present at K.J.=s home at the time the assaults were alleged to have occurred. In addition, appellant testified he was never alone with K.J., again implying he did not have an opportunity to commit the assaults. Dr. Lukefahr testified there can be indicators of sexual abuse in the mouth and that no such indicators were found in K.J.=s mouth.

The jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000); Beckham v. State, 29 S.W.3d 148, 151B52 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). The jury was free to consider any inconsistencies in K.J.=s testimony and to evaluate her credibility accordingly. See Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000) (en banc). The jury was free to accept or reject appellant=s own testimony that he did not commit the offenses against K.J. See Beckham, 29 S.W.3d at 151. In addition, the jury may believe or disbelieve all or part of any witness=s testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998) (en banc). Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995) (en banc). Thus, the jury was free to believe that a four year old child would not make the types of statements reported by Davis, the outcry witness, unless she had heard them before.  In addition, the jury was free to accept or reject appellant=s theories that he was (1) out of town, or (2) never alone with K.J., and thus could not have committed the assaults. See Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001) (en banc).

Again, we have reviewed the entire record. Based on this record, we cannot say that the evidence contrary to the verdicts is so overwhelming that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 144 S.W.3d at 484B85. As the evidence is factually sufficient to support appellant=s convictions, we overrule appellant=s second issue.

Having overruled appellant=s issues, we affirm the trial court=s judgments.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed May 25, 2006.

Panel consists of Justices Anderson, Edelman, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  We note here that appellant=s Statement of Facts in his brief is incomplete. The most glaring examples of appellant=s omissions include: (1) failing to include in the Statement of Facts the contents of the Advocacy Center=s  videotaped interview of K.J.; and  (2) omitting Dr. Lukefahr=s testimony regarding his conclusion that K.J. was the victim of sexual assault, but emphasizing testimony that was not relevant to the charges against appellant (K.J.=s hymen was completely normal and had no evidence of sexual penetration).

^[2]  Lukefahr testified there are four possible causes of anal dilatation: (1) strong urge to defecate; (2) recent bowel movement; (3) severe chronic constipation; and (4) sexual abuse in the form of anal penetration. The medical records reveal that Blackmon specifically asked about each of the three non-sexual abuse causes of anal dilatation and eliminated them during the examination of K.J. 

^[3]  Trial Court Cause Number 03CR1944.

^[4]  Trial Court Cause Number 03CR1943.

^[5]  See Bolden v. State, 634 S.W.2d 710, 712 (Tex. Crim. App.  1982) (finding no abuse of discretion where trial court did not permit appellant=s counsel to question venire about their previous verdicts even though same information was allegedly possessed by prosecutor); Redd v. State, 578 S.W.2d 129, 130B131 (Tex. Crim. App. 1979) (where prosecutor had records of prior jury service and verdicts rendered, trial court did not abuse its discretion in denying defense counsel from asking potential jurors about their previous verdicts because Asome limitation on voir dire is necessary or many trials would never end@); Oliver v. State, 739 S.W.2d 656, 657B58 (Tex. App.CDallas 1987, pet. ref=d) (holding trial court has the right to confine examination of venire within reasonable limits, and thus, trial court did not err in prohibiting questions regarding previous verdicts).

^[6]  As a factual sufficiency review begins with the presumption that the evidence supporting the jury=s verdict is legally sufficient, and since appellant challenges only the factual sufficiency of the evidence, he effectively concedes that the evidence is legally sufficient to sustain the convictions. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996) (en banc).

^[7]  During her interview at the Advocacy Center, K.J. clearly indicated she used the word Atail@ as her word for Apenis.@