in the Matter of Q.D.M.T. ( 2008 )

Affirmed and Memorandum Opinion filed November 13, 2008

Affirmed and Memorandum Opinion filed November 13, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00470-CV

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IN THE MATTER OF Q.D.M.T.

On Appeal from the County Court at Law No. 2

Fort Bend County, Texas

Trial Court Cause No. 13064

M E M O R A N D U M   O P I N I O N

Appellant Q.D.M.T. appeals from a jury=s determination that he engaged in delinquent conduct by committing the felony offenses of aggravated sexual assault by penetration, aggravated sexual assault by contact, and indecency with a child by exposure.  The trial court committed appellant to the Texas Youth Commission for an indeterminate period not to exceed his twenty-first birthday.  In his sole issue, appellant contends that the evidence at trial was factually insufficient to support the jury=s Atrue@ finding on each of the charged offenses.  We affirm.

I.  Preservation of Error

As a threshold matter, we must address whether appellant properly preserved his sole issue.  The Texas Rules of Civil Procedure govern a juvenile proceeding except when in conflict with a provision of Title 3 of the family code.  Tex. Fam. Code Ann. ' 51.17(a) (Vernon Supp. 2008).  Texas Rule of Civil Procedure 324(b)(2) requires an appellant to file a motion for new trial before challenging on appeal the factual sufficiency of the evidence to support a jury finding.  Tex. R. Civ. P. 324(b)(2).  Juveniles must comply with that rule before bringing a factual sufficiency issue on appeal from a jury trial.  In re M.R., 858 S.W.2d 365, 366 (Tex. 1993); In re A.E.B., 255 S.W.3d 338, 345 (Tex. App.CDallas 2008, no pet.);  In re D.T.C., 30 S.W.3d 43, 51 (Tex. App.CHouston [14th Dist.] 2000, no pet.). Appellant failed to file a motion for new trial, and thus he has not preserved his factual sufficiency issue for review.  However, under the circumstances of this case, we will address appellant=s sole issue in the interest of justice.  See In re O.G.J., No. 03-05-00806-CV, 2006 WL 3754782, at *3 (Tex. App.CAustin Dec. 20, 2006, no pet.) (mem. op., not designated for publication) (addressing factual sufficiency despite failure to file a motion for new trial due to conflict among courts of appeals as to whether one is required).

II.  Facts

Appellant (then fourteen years old) attended a party for complainant=s brother at complainant=s house.  After appellant left the house the next day, complainant (then eight years old) told his mother that appellant had tried to put Ahis pee-pee into my butt.@  At the mother=s request, he repeated the allegation to his stepfather and then described the events leading up to the incident: he and appellant went into a bedroom of complainant=s home to play a video game; the door was shut and locked; appellant pulled complainant=s pants down, told him to be quiet, and put lotion on Athe middle of [his] butt.@  Complainant=s mother called the police, who prompted her to ask complainant if appellant=s acts caused pain.  Complainant responded that it Ahurt very bad.@

A few hours after the police arrived, complainant was taken to the hospital.  He told Nurse Sandra Martin he was there because Ahe put his pee-pee in my butt.@  Nurse Martin=s examination found a tear on complainant=s anus consistent with anal penetration. She testified that the coloration and lack of healing suggested that the tear was fresh.  While her initial examination did not reveal whether the penetration had occurred from the outside-in or from the inside-out via a hard stool, her subsequent investigation ruled out the latter as a potential cause of the tear.  Nurse Wendy Salinas Frazier reviewed the medical records and testified for the defense regarding potential non-penetrative causes of complainant=s anal tear, including the possibility of rough toilet paper use before the exam.  According to Nurse Salinas, the tear was not fresh because no bleeding was present in the pictures of complainant=s anus, and the notation Agood sphincter tone@ in the records indicated the absence of rectal intercourse.

The day after the incident, complainant met with forensic interviewer Mary Ann Reinke and identified a Apee-pee@ as a penis and a Abutt@ as the buttocks on an anatomical diagram.  Complainant told Reinke he lived in a trailer (which was not true) and did not know why he was at the interview.  Based on complainant=s negative responses when asked if anything went into his Abutt@ or went in Awhere the poop comes from,@ Reinke believed that appellant=s penis never penetrated complainant=s anus.

In a voluntary, non-custodial recorded statement to Detective Jeff Martin four days after the incident, appellant first denied involvement but then admitted that his penis made contact with and penetrated complainant=s anus.  Detective Martin testified that appellant=s statement necessarily indicated that appellant had exposed his penis to complainant.

At trial, complainant testified that appellant was Abeing nasty@ on one occasion while visiting complainant=s house.  Upon further examination, he stated that on that occasion he and appellant were on complainant=s brother=s bed playing a video game when appellant pulled complainant=s pants down, pulled his own pants down, put lotion on his Apee-pee,@ put his Apee-pee@ in complainant=s Abutt@ four times, and told him to be quiet.  Complainant explained that a Apee-pee@ is what you Ago potty@ with, a Abutt@ is what he was sitting on, and that it hurt when appellant put his Apee-pee@ in his Abutt.@  Complainant testified that he told his mother about the incident.  The jury found the charges true, and appellant now contends that the evidence was factually insufficient to support the jury=s verdict.

III.  Analysis

In juvenile cases, a reviewing court applies the criminal sufficiency standards of review.  See In re G.A.T., 16 S.W.3d 818, 828B29 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  When conducting a factual sufficiency review, we view all of the evidence in a neutral light.  Cain v. State, 958 S.W.2d 404, 407B08 (Tex. Crim. App. 1997) (en banc).  We must also discuss the evidence that, according to the appellant, most undermines the jury=s verdict.  See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).  We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) considering conflicting evidence, the verdict is against the great weight and preponderance of the evidence.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  We cannot set the verdict aside under the first prong of Johnson simply because, on the quantum of the evidence admitted, we would have voted for acquittal had we been on the jury.  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  To set aside the verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that it is contradicted by the great weight and preponderance of the evidence.  Id. In our review, we do not re-evaluate the credibility of witnesses or reweigh the evidence, and we will not substitute our judgment for that of the factfinder.  Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998).

To commit the offenses of aggravated sexual assault by contact and penetration as charged in this case, the appellant must have intentionally or knowingly caused complainant=s anus to contact appellant=s sexual organ and intentionally or knowingly caused the penetration of complainant=s anus by appellant=s sexual organ, respectively.  Tex. Penal Code Ann. ' 22.021(a)(1)(B) (Vernon Supp. 2008).  To commit the charged offense of indecency with a child by exposure, appellant must have exposed any part of his genitals, knowing complainant was present, with intent to arouse or gratify the sexual desire of any person.  Id. ' 21.011(a)(2)(A) (Vernon 2003).  The crime of indecency by exposure does not require complainant to have actually seen appellant=s genitals, but only that appellant exposed his genitals knowing complainant was present.  Breckenridge v. State, 40 S.W.3d 118, 124 (Tex. App.CSan Antonio 2000, pet. ref=d).

The jury=s Atrue@ findings were supported by (1) complainant=s outcry statement to his mother, (2) complainant=s testimony at trial describing the incident and stating that appellant put his Apee-pee@ in complainant=s Abutt,@ (3) his statement to Nurse Martin and her findings that complainant had a fresh anal tear consistent with penetration, and (4) appellant=s admitting to penetrating complainant=s anus with his penis.  A child=s outcry statement alone is sufficient to support a guilty verdict on aggravated sexual assault and indecency with a child charges.  See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005); Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991); Diaz v. State, 125 S.W.3d 739, 743B44 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d).  Additionally, a child sexual abuse victim=s uncorroborated testimony is independently sufficient to support convictions for the offenses charged here, provided, of course, that it is probative and reliable.  See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978);  Ketchum v. State, 199 S.W.3d 581, 590 (Tex. App.CCorpus Christi 2006, pet. ref=d).

Appellant challenges the factual sufficiency of this evidence on several bases.  He claims that complainant=s testimony was occasionally vague, unresponsive, and repetitive, but the law does not require complainant to precisely describe the incident or express himself at the same level of sophistication as an adult.  Ketchum, 199 S.W.3d at 590.  Given the evidence of what complainant meant by the terms Apee-pee@ and Abutt,@ his description of appellant=s acts was sufficiently precise to support a conviction for the charged offenses.  See Gallegos v. State, 918 S.W.2d 50, 54 (Tex. App.CCorpus Christi 1996, pet. ref=d).

As contradictory evidence affecting the reliability of complainant as a witness, appellant points to forensic examiner Reinke=s testimony that she did not believe anal penetration occurred based on complainant=s interview responses.  Appellant also points to complainant=s erroneous claim to live in a trailer and statement that he did not know why he was at the interview site as evidence weakening complainant=s reliability. However, appellant=s argument goes to the credibility of complainant as a witness, which is a matter for the jury to decide.  Navarro v. State, 241 S.W.3d 77, 81 (Tex. App.CHouston [1st Dist.] 2007, pet. ref=d).  The jury is the sole judge of the weight and credibility accorded any witness=s testimony.  Cain, 958 S.W.2d at 407 n.4.  The jury can accept or reject any or all of a witness=s testimony.  Hughes v. State, 897 S.W.2d 285, 289 (Tex. Crim. App. 1994).  Because we must defer to the fact-finder=s implicit finding that complainant=s trial testimony was credible, see Johnson, 23 S.W.3d at 12, the contradictory evidence above does not render the evidence of appellant=s delinquency factually insufficient to support the jury=s verdict.

Appellant also claims Nurse Martin=s testimony was unhelpful because she found no semen and only testified to a small anal tear.  Appellant points to Nurse Salinas=s contradictory testimony that complainant=s good sphincter tone was not consistent with rectal stimulation or intercourse and that the anal tear did not appear fresh and could have resulted from non-penetrative causes.  However, her testimony regarding the tear=s freshness went only to a lack of blood in the photographs and did not address Nurse Martin=s bases for determining the tear=s freshness.  Thus, the expert testimony here conflicts.  The jury indicated by its verdict that it gave greater weight and credibility to Nurse Martin=s account, and we will not substitute our judgment for theirs in that regard.  See Johnson, 967 S.W.2d at 412; Cain, 958 S.W.2d at 408B09; see also Sanders v. State, 771 S.W.2d 645, 649 (Tex. App.CEl Paso 1989, pet. ref=d) (jury is sole judge of weight and credibility to be given conflicting expert testimony).

Finally, Nurse Salinas=s testimony and Reinke=s belief (based on her interview of complainant) that no penetration occurred were contradicted by appellant=s admission to penetrating complainant=s anus with his penis.  While appellant challenges the statement as Aunreliable@ because appellant made the inculpatory statements after Detective Martin expressed his doubt in appellant=s denial of involvement, the record shows that the trial court found the statement to be voluntary and noncustodial, Detective Martin=s questioning was permissible, and appellant was allowed to cross-examine Detective Martin on these issues at trial.  See In re R.J.H., 79 S.W.3d 1, 8 (Tex. 2002). Furthermore, the jury viewed appellant=s video taped statement and listened to the cross-examination on these issues, and we defer to their implicit determination against appellant with regard to the weight and credibility of that evidence.  See Johnson, 23 S.W.3d at 11; Cain, 958 S.W.2d at 407.

Having reviewed all the evidence, we cannot conclude that it is so weak that the jury=s verdict is manifestly unjust or clearly wrong.  Similarly, the conflicting evidence presented by appellant provides no objective basis in the record to support his assertion that the jury=s verdict is contradicted by the great weight and preponderance of the evidence.  Therefore, we overrule appellant=s sole issue and affirm the judgment of the trial court.

/s/      Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed November 13, 2008.

Panel consists of Justices Yates, Anderson, and Brown.