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 2008-02

Claudine Miles v. Gary McDonald ( 2008 )


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    In The

    Court of Appeals

    Sixth Appellate District of Texas at Texarkana



    ______________________________



    No. 06-08-00003-CV

    ______________________________





    CLAUDINE MILES, Appellant



    V.



    GARY MCDONALD, Appellee





    On Appeal from the 276th Judicial District Court

    Marion County, Texas

    Trial Court No. 0700214









    Before Morriss, C.J., Carter and Moseley, JJ.

    Memorandum Opinion by Justice Carter



    MEMORANDUM OPINION



    Claudine Miles, appellant, has filed with this Court a motion to dismiss her pending appeal in this matter pursuant to Rule 42.1(a) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 42.1(a)(1). The motion is signed by the appellant, who is representing herself pro se.

    We grant the appellant's motion and dismiss the appeal.



    Jack Carter

    Justice



    Date Submitted: February 5, 2008

    Date Decided: February 6, 2008





    dicate his guilt for delivery of a controlled substance was not supported by factually sufficient evidence. In his third point of error, Kreitel contends the trial court erred in adjudicating his guilt for delivery of marihuana based on his failure to pay fines, fees, and court costs because Kreitel presented evidence of his inability to pay. And in his fourth point of error, Kreitel contends the trial court erred by revoking his community supervision based on the conviction for aggravated sexual assault of a child.

    Both Kreitel and the State appear to assume this Court has jurisdiction to consider the merits of Kreitel's appeal of the trial court's decision to adjudicate Kreitel's guilt for possession of marihuana and delivery of a controlled substance, because both parties briefed the merits of Kreitel's first four issues. "In a criminal case, appeal is perfected by timely filing a notice of appeal." Tex. R. App. P. 25.2(a). Such notice must be written and filed with the trial court clerk. Tex. R. App. P. 25.2(b)(1). A written notice of appeal complying with the requirements of the Rules of Appellate Procedure is essential to invoke the appellate jurisdiction of this Court. Ex parte Gibbons, 992 S.W.2d 707, 708 (Tex. App.-Waco 1999, pet. ref'd) (citing Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998)).

    In the record before us, Kreitel's notice of appeal concerns only the case in which he was charged with aggravated sexual assault. The record contains no formal notice of appeal of the other cases. Accordingly, to the extent the parties' briefs address points of error concerning the two drug cases, we are without jurisdiction to consider those issues. See Slaton, 981 S.W.2d at 210; Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996); Gibbons, 992 S.W.2d at 708. We overrule Kreitel's first, second, third, and fourth points of error for want of jurisdiction.

    In his fifth and sixth points of error, Kreitel contends the evidence is legally and factually insufficient to support his conviction for aggravated sexual assault of a child. When conducting a legal sufficiency review, we examine all the evidence in the light most favorable to the prosecution and ask if any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Nelson v. State, 848 S.W.2d 126, 131 (Tex. Crim. App. 1992); Garrett v. State, 998 S.W.2d 307, 310 (Tex. App.-Texarkana 1999, pet. ref'd, untimely filed). The trier of fact is free to accept or reject any or all of any witness' testimony and reconcile any conflicts in the evidence. Peters v. State, 997 S.W.2d 377, 383 (Tex. App.-Beaumont 1999, no pet.). In reviewing the evidence for legal sufficiency, this Court must presume the trier of fact resolved any conflicting inferences in favor of the prosecution and must defer to that resolution. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). The fact-finder may use common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence and may infer knowledge or intent from the acts, words, and conduct of the accused. See Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (Meyers, J., concurring); Wawrykow v. State, 866 S.W.2d 87, 88-89 (Tex. App.-Beaumont 1993, pet. ref'd).

    When reviewing the evidence for factual sufficiency, we examine the evidence in a neutral light and set aside the verdict only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust. Ortiz v. State, No. 73692, 2002 WL 31116634, at *5 (Tex. Crim. App. Sept. 25, 2002). Though an appellate court may "disregard evidence that supports the verdict, it must be appropriately deferential so as to avoid substituting its own judgment for that of the fact finder." Id. We must not substantially intrude on the fact-finder's role as sole judge of the weight and credibility of the witnesses and their testimony. Id.

    Kreitel contends the evidence is legally and factually insufficient to support his conviction for aggravated sexual assault of a child by penetrating the victim's mouth with his sexual organ because the evidence does not show Kreitel directly or indirectly caused the victim's mouth to be penetrated by Kreitel's genitals. A person commits the offense of aggravated sexual assault if he or she intentionally or knowingly causes the penetration of the mouth of a child by the sexual organ of the actor and the child is younger than fourteen years of age and not the spouse of the actor. Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2003). "A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result." Tex. Pen. Code Ann. § 6.03(a) (Vernon 1994) (emphasis added). A defendant's intent may be inferred from the defendant's words, actions, or other conduct. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995).

    The victim testified that, when she had lived with her mother, her mother made her touch Kreitel's "private." The victim further stated her mother had made her (the victim) put her mouth on Kreitel's "private." According to the victim's testimony, Kreitel was awake when this happened. The victim's sister also testified she saw the victim touch and put her mouth on Kreitel's genitals.

    Examining all the evidence in the light most favorable to the verdict, we believe the evidence is legally sufficient to establish the elements of aggravated sexual assault of a child. The evidence shows Kreitel was awake and conscious at the time of the incident, and there is nothing in the record to indicate Kreitel was anything other than a willing participant in the crime. It is this willing participation that demonstrates Kreitel's "conscious objective or desire to engage in the conduct or cause the result" of that participation, namely the insertion of his genitals in the victim's mouth. See Tex. Pen. Code Ann. § 6.03(a) (emphasis added). The contrary evidence (Kreitel's denial) was found to be incredible by the fact-finder, as evidenced by the trial court's judgment of guilt. See Turro, 867 S.W.2d at 47 (appellate court presumes conflicting evidence was resolved in favor of prosecution). Kreitel's silence at the time of the incident and his acquiescence in having his penis penetrate the victim's mouth is sufficient circumstantial evidence he intended the resulting crime to occur. See Saldivar v. State, 783 S.W.2d 265, 267 (Tex. App.-Corpus Christi 1989, no pet.) (aggravated sexual assault of child is result-oriented offense). We overrule Kreitel's fifth point of error.

    Examining all the evidence presented at trial in a neutral light, as is required for a factual sufficiency review, there is evidence both contradicting and supporting the trial court's judgment. Another girl and her mother, who according to the victim and her sister had both witnessed the crime, denied seeing any sexual contact between the victim and Kreitel. Kreitel himself denied having sexually assaulted the victim. This evidence contradicts the trial court's judgment.

    There are also differences between the victim's pretrial interviews and her testimony at trial. In her initial interview at a child advocacy center, the victim did not mention that Kreitel sexually assaulted her. In her second interview at that facility, the victim said she was forced to touch Kreitel's genitals with her hand, but she repeatedly denied ever putting her mouth on Kreitel's genitals. It was not until trial that the victim first testified she was made to put her mouth on Kreitel's genitals. However, it is the duty of the fact-finder, not the court of appeals, to resolve conflicts regarding the reliability of conflicts in witness testimony. Peters, 997 S.W.2d at 383 (fact-finder free to disbelieve victim's recantation; appellate court should not re-evaluate probative value of testimony).

    In this case, deciding the probative value of discrepancies between the victim's interview statements and her trial testimony is best left to the fact-finder who heard the evidence and observed the witness' behavior at the time of trial. The trial court found Kreitel guilty of causing his genitals to penetrate the victim's mouth, and we must therefore assume the trial court reconciled the victim's conflicting statements in favor of finding that her trial testimony carried the greatest credible weight.

    Additionally, specific and concrete evidence corroborates the victim's trial testimony on the central issues. The victim and her sister both testified that the crime occurred in the family's living room, that Kreitel's pants were below his knees at the time, that the victim was forced to put Kreitel's penis in her mouth, and that Kreitel was awake at the time. Given our obligation to not substantially intrude on the fact-finder's role as sole judge of the weight and credibility of the witnesses, we find the evidence factually sufficient to support the trial court's judgment. (1) Ortiz, 2002 WL 31116634, at *5; Peters, 997 S.W.2d at 383. We overrule Kreitel's sixth point of error.



    We affirm the trial court's judgment.





    Donald R. Ross

    Justice





    Date Submitted: November 12, 2002

    Date Decided: January 30, 2003



    Do Not Publish

    1. In its ruling on guilt/innocence, the trial court stated, "Despite the conflicts in the testimony, the [trial] Court is going to find the believable testimony and the weight of the testimony establishes the defendant's guilt beyond a reasonable doubt." Clearly, the trial court's judgment was based on its finding that the credible testimony was that of the victim and her sister.