Kenneth Gerhart Andrew v. State ( 2009 )

Affirmed and Memorandum Opinion filed January 8, 2009

Affirmed and Memorandum Opinion filed January 8, 2009.

In The

Fourteenth Court of Appeals

____________

NO.  14-07-00241-CR

____________

KENNETH GERHART ANDREW, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No.  1058171

M E M O R A N D U M   O P I N I O N

Kenneth Gerhart Andrew was convicted of aggravated sexual assault of a child and sentenced to confinement for thirty-five years in the Texas Department of Criminal Justice, Institutional Division.  Andrew appeals his conviction, asserting that the trial court erred in instructing the jury and that the trial evidence was factually insufficient to support the verdict. We affirm.

I. Factual and Procedural Background

One evening in December 2003, the complainantCwho was  twelve years old at the timeCwas at home eating dinner with her sister and brothers.  Her adoptive mother, Ruby Morris, was in the hospital at that time with a heart ailment.  Her adoptive father had died several years earlier.  According to complainant=s testimony, the appellant, her mother=s second husband, came home from work between 6:30 p.m. and 7:00 p.m.  The appellant walked through the dining area and asked the complainant to come into his bedroom.  The complainant then followed appellant into his bedroom.  The complainant testified that appellant placed his keys on a nightstand, picked up a pillow,  and then closed the bedroom door, placing the pillow against the crack under the door.  The appellant then turned out the lights and locked the deadbolt lock on the bedroom door.  According to the complainant, appellant then walked across the dimly lit room, and sat down on a rocking chair.  The complainant heard what she described as a Azipper@ sound just before appellant sat down.  Then, according to the complainant, appellant asked her to get on her knees and perform oral sex on him.  At trial, the complainant described how she walked across the room, knelt before the appellant, and then took his penis into her mouth.  The complainant testified that, after several minutes, she got up and went to leave the room.  At that point, appellant told her not to tell anyone of the encounter.  She then unlocked and opened the bedroom door before walking upstairs. 

The complainant further testified that a few months later she told her niece of her encounter with the appellant.^[1] The complainant said that, despite the encouragement of her niece to tell someone about the incident, her fear of the appellant kept her from wanting to tell anyone else.  Nonetheless, the niece went to the complainant=s mother and told her of the incident.  Later, the complainant herself discussed the incident with her mother.  The complainant=s mother then confronted appellant on the matter, and he denied it.  Almost two years later, and after her mother had died, the complainant told her older sister of the incident.  The older sister called the police to report the incident, and an investigation ensued.

Appellant was indicted on the charge of aggravated sexual assault of a child under the Texas Penal Code.  The case was tried to a jury wherein appellant was convicted and sentenced to thirty-five years= confinement in prison. Appellant then filed this timely appeal.

II. Analysis

A. Jury Charge

Appellant=s first and second issues on appeal involve the jury charge. Appellant claims that the trial court erroneously charged the jury when it instructed the jury to Adetermine whether Appellant was guilty or innocent.@ Appellant asserts that this instruction shifted the burden of proof at trial from the State to appellant.  Specifically, appellant objects to the following paragraph of the jury charge:

Your sole duty at this time is to determine the guilt or innocence of the defendant under the indictment in this cause and restrict your deliberations solely to the  issue of guilt or innocence of the defendant.

An appellate court=s first duty in evaluating a jury charge issue is to determine whether error exists.  Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003); Lee v. State, No.  14-06-00208-CR, 2007 WL 2183111, at *2 (Tex. App.CHouston [14th Dist.] July 31, 2007, pet. ref=d) (mem.  op., not designated for publication).  Then, if error is found, the appellate court should analyze that error for harm.  Middleton, 125 S.W.3d at 453; Lee, 2007 WL 2183111, at *2.  We review the alleged error in the charge by looking to the entire charge, the state of the evidence, the arguments of counsel, and any other relevant information contained in the record.  Olivas v.  State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006);  Barnes v. State, 855 S.W.2d 173, 175 (Tex. App.CHouston [14th Dist.] 1993, pet. ref=d).

In the case before us, the jury charge stated no less than six times that, in order to convict the appellant, his guilt must be proven beyond a reasonable doubt.  This point was amplified for the jury when appellant=s own counsel stated during closing argument, AAnd you=ll see in the jury charge over and over again that the burden of proof rests with the State and it never shifts to the defendant.@ Finally, the charge expressly states that the appellant was not required to prove anything at all.

The statement to which the appellant objects was the next-to-the-last paragraph of a six-page jury charge.  The language at issue merely conforms to the statutory requirement of Texas Code of Criminal Procedure art. 37.07, section 2(a) that, in a felony trial, the judge first must submit the guilt or innocence issue to the jury before authorizing any consideration of punishment.  See Act of May 29, 2005, 79th Leg., R.S., ch.  660, _ 1, 2005  Tex. Gen. Laws 1641, amended by Act of May 18, 2007, 80th Leg., R.S., ch.  593, __ 3.14 & 3.15, 2007 Tex. Gen. Laws 1120, 1133 (current version at Tex. Code Crim. Proc. Ann. art. 37.07, _ 2(a) (Vernon Supp. 2008)).^[2]

 This court has declined to find error in similar jury instructions before, and we do so again in this case.  See Barnes, 855 S.W.2d at 175 (instruction telling jurors that their Asole duty at this time is to determine the guilt or innocence of the defendant under the indictment@ was appropriate, in light of state=s bifurcated submission); Avila v. State, 15 S.W.3d 568, 576B77 (Tex. App._Houston [14th Dist.] 2000, no pet.) (jury charge restricting deliberations Asolely to the guilt or innocence of the defendant@ did not impermissibly place burden on defendant to prove his innocence).  AAs demonstrated by an examination of the entire charge which instructs the jury that the defendant did not have to prove his innocence, the burden of proof for the State was not changed by the challenged language in the charge, and no burden was placed on appellant to prove his innocence.@ Avila, 15 S.W.3d at 576B77. Consequently, it was not error for the trial court to submit a charge to the jury instructing them to restrict their deliberations to the guilt or innocence of the defendant.  See id.  at 577.  Appellant=s first and second issues are overruled.

B. Factual Sufficiency

In his third issue on appeal, the appellant contends that the evidence is factually insufficient to support his conviction for aggravated sexual assault of a child.  Specifically, he argues that the proof was insufficient to implicate him in the charged offense.

When reviewing a factual‑sufficiency challenge, we view all the evidence neutrally.  Pyeatt v. State, No. 14-07-00272-CR, 2008 WL 442580, at *2 (Tex. App.CHouston [14th Dist.] Feb. 19, 2008, pet. ref=d) (mem.  op., not designated for publication); see also Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997).  We especially discuss and examine the specific evidence that the appellant contends undermines the jury=s verdict.  Pyeatt, 2008 WL 442580 at *2; see also Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).  We may set aside the verdict if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or if the verdict is against the great weight and preponderance of the evidence.  Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006); Pyeatt, 2008 WL 442580 at *2.  We may disagree with the jury=s conclusions; however, we must avoid substituting our judgment for that of the jury, particularly in matters of credibility.  Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); Pyeatt, 2008 WL 442580 at *2.

A person commits aggravated sexual assault of a child if he intentionally and knowingly causes the penetration of the mouth of the complainant with his sexual organ when the complainant is a child younger than fourteen years of age and not the person=s spouse.  See Tex. Penal Code Ann. _ 22.021(a)(1)(B)(ii), (2)(B) (Vernon Supp.  2008).  On appeal, appellant disputes the evidence presented against him on the basis that (1) the only direct evidence against him was the testimony of the now fifteen-year-old complainant; and (2) the complainant=s testimony A[made] no sense.@

Specifically, the appellant points to elements of the complainant=s testimony wherein she stated that during the alleged assault: neither she nor the appellant moved at all; nothing came out of the appellant=s penis; the appellant never moved his hands from the rocking chair=s armrests; the complainant never looked at the appellant=s private area; the complainant=s eyes were closed the entire time; the appellant never touched her; and that the complainant ended the incident when she just decided to stop, at which time she got up and unlocked door.  The appellant further highlights the complainant=s testimony at trial that she had learned about oral sex from reading articles in Seventeen magazine.  Based on this testimony, the appellant argues that the complainant must have invented her testimony based on the Aone-dimensional pages of Seventeen magazine,@ rather than any actual encounter with appellant.  Principally, the appellant asserts that the complainant=s description of the alleged incident denies its reality, placing it Abeyond the realm of believability.@

The uncorroborated testimony of a sexual assault victim under fourteen years of age alone is sufficient to support a conviction for aggravated sexual assault of a child.  See Tex. Code Crim. Proc. art. 38.07(a) (Vernon 2005); Grays v.  State, No.  14-07-00742-CR, 2008 WL 2746078, at *4 (Tex. App.CHouston [14th Dist.] July 15, 2008, pet. ref=d) (mem. op., not designated for publication).  However, for the victim=s uncorroborated testimony to be sufficient to sustain a conviction, the victim must have informed any person, other than the defendant, of the offense within one year after the date on which the offense is alleged to have occurred. See Tex. Code Crim. Proc. art. 38.07(a); Grays, 2008 WL 2746078, at *4 n.5.  In this case, the complainant testified that she told her niece about the incident only a few months after the event took place.  Therefore, no further corroboration of the complainant=s testimony was required.

The trial transcript reveals that, during her testimony, the complainant described the specific circumstances of the incident four times in varying levels of detail.  The complainant testified to the following: appellant instructed her to perform oral sex on him; appellant opened his trousers, making his penis available to her; complainant put appellant=s penis into her mouth; and complainant was twelve years old at the time.  The complainant=s testimony sufficiently described acts which could satisfy the elements of the charged offense.  See Tex. Penal Code Ann. _ 22.021(a)(1)(B)(ii), (a)(2)(B). Appellant argues that the complainant=s descriptions of these acts defy believability.  However, complainant was subjected to vigorous cross-examination by appellant=s trial counsel.  As a result, appellant had the opportunity to expose any credibility issues at trial, as well as any motives for the complainant=s testimony.

We are mindful that we must exercise appropriate deference to the jury=s credibility determinations, to avoid substituting our judgment for that of the jury.  Grays, 2008 WL 2746078, at *4; see also Drichas, 175 S.W.3d at 799; Watson, 204 S.W.3d at 414.  Here, the jury was free to evaluate her testimony and believe some, all, or none of it.  See Grays, 2008 WL 2746078, at *4; see also Williams v. State, 226 S.W.3d 611, 615 (Tex. App._Houston [1st Dist.] 2007, no pet.) (citing Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986)).  Thus, considering the evidence in a neutral light, we cannot say that the evidence is so weak as to make the verdict clearly wrong and manifestly unjust.  Nor can we say that the verdict is against the great weight and preponderance of the evidence.  The evidence supporting the verdict is therefore factually sufficient.  See Watson, 204 S.W.3d at 414B15; Grays, 2008 WL 2746078, at *2. We overrule appellant=s third issue.

III. Conclusion

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

/s/         Jeffrey V. Brown

Justice

Panel consists of Chief Justice Hedges and Justices Guzman and Brown.

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

---

^[1]  The complainant=s niece, the daughter of complainant=s much-older adoptive sister, is actually older than the complainant.

^[2]  Appellant was convicted on March 2, 2007, under the prior version of the statute.  However, there are no material differences between the prior and existing versions of the relevant section.