Randy Allen Delane v. State ( 2007 )

NUMBERS 13-06-124-CR & 13-06-126-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

RANDY ALLEN DELANE, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 377th District Court of Victoria County, Texas.

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza Memorandum Opinion by Justice Yañez

Following a joint jury trial on two separate indictments, appellant, Randy DeLane, was convicted of two counts of aggravated sexual assault ⁽¹⁾ and indecency with a child. ⁽²⁾ The jury assessed punishment at thirty years' imprisonment for each count of aggravated sexual assault. Appellant was then sentenced by the jury to ten years' imprisonment for his indecency with a child conviction, but that sentence was suspended, and appellant was placed on community supervision for a period of ten years. In each appeal, appellant contends that the evidence presented at trial was legally and factually insufficient to support his conviction. We affirm.

A. Background

In early March of 2004, S.R., a thirteen-year-old girl, made an outcry to her step-mother, stating that appellant had touched her butt and private area. S.R. repeated her outcry statement to a forensic interviewer and a sexual assault nurse examiner. ⁽³⁾ On physical examination of the child, the sexual assault nurse examiner did not find any injuries or physical evidence of sexual assault.

B. Standard of Review

1. Legal Sufficiency

When reviewing the legal sufficiency of the evidence to support a conviction, we consider all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ⁽⁴⁾ This standard gives "full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." ⁽⁵⁾ In this review, we do not reevaluate the weight and credibility of the evidence; rather, we act only to ensure that the jury reached a rational decision. ⁽⁶⁾

2. Factual Sufficiency

In determining the factual sufficiency of the elements of the offense, we view all the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. ⁽⁷⁾ We set aside a finding of guilt only if the evidence supporting the verdict is so weak that the jury's verdict is clearly wrong and manifestly unjust or when the great weight and preponderance of the evidence is contrary to the verdict. ⁽⁸⁾

The jury, as the trier of fact, is the exclusive judge of the credibility of witnesses and the weight to be afforded their testimony. ⁽⁹⁾ The jury is free to believe one version of the facts and reject another. ⁽¹⁰⁾ It is also entitled to accept or reject all or any portion of a witness's testimony. ⁽¹¹⁾ We are authorized to disagree with the fact finder's determination only when the record clearly indicates our intervention is necessary to stop the occurrence of a manifest injustice. ⁽¹²⁾

C. Applicable Law

A person commits aggravated sexual assault if he intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means. ⁽¹³⁾ The testimony of a child sexual assault victim alone is sufficient to support a conviction. ⁽¹⁴⁾ Additionally, we do not require a child victim's description of the incident to be precise, and she is not expected to express herself at the same level of sophistication as an adult. ⁽¹⁵⁾ There is no requirement that the victim's testimony be corroborated by medical or physical evidence. ⁽¹⁶⁾ Furthermore, a child victim's outcry statement alone can be sufficient to sustain a conviction for aggravated sexual assault. ⁽¹⁷⁾

Section 21.11 of the Texas Penal Code provides that a person commits the offense of indecency with a child if, with a child under 17 years and not the person's spouse, the person engages in sexual contact with the child or causes the child to engage in sexual contact. ⁽¹⁸⁾ "Sexual contact" is defined as "any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child" if the act is committed "with the intent to arouse or gratify the sexual desire" of the person. ⁽¹⁹⁾ A jury may infer the requisite intent from the defendant's conduct, remarks, or all the surrounding circumstances. ⁽²⁰⁾

D. Application of Law to Facts

1. Aggravated Sexual Assault

During the time of the alleged offenses, S.R. lived with her mother, brother, and appellant, S.R.'s step-father. Other individuals also resided at the home for various periods of time. At trial, the State called S.R. to testify. She stated that appellant would get on his knees and stick his tongue in her vagina. S.R. testified that this happened more than once, but said it occurred around February of 2004, during one of the last incidents. She also stated that appellant stuck his penis in her "butt" and stuck his finger in her "butt." She described the incident as horrible and excruciatingly painful. Again, she testified that this happened more than once, in both 2003 and 2004.

The State also admitted into evidence a videotape of the forensic interview with S.R. that was conducted at the HOPE Center on March 8, 2004. The video was played for the jury. In the interview, S.R. makes similar statements regarding the sexual abuse.

S.R.'s step-mother testified about the outcry S.R. made to her in early March 2004. She stated that based on information she had received and a general suspicion, she began asking S.R. if something had happened to her. She testified that S.R. told her that appellant had touched her "butt" and private area. The step-mother did not ask for more specific details, but stated that she spoke with her husband and mother-in-law, who called Child Protective Services.

Marie Hollingshead, a case worker for CPS, stated that she watched the forensic interview, as it was being conducted, from another room. She testified that there was no way a thirteen-year-old could describe the incidents S.R. spoke of without having experienced them. She stated that S.R. was very embarrassed, and the information received from the interview was not forthcoming.

Four days after the forensic interview, S.R. received a chronic sexual assault examination. Leslie Kallus, the sexual assault nurse examiner who performed the examination on S.R., testified that during the medical history portion of the exam, S.R. told her that appellant rubbed her "butt" with his "private," placed his fingers in her "butt," and licked her "front private" more than once. Kallus stated that no injury was found during the physical examination, which was consistent with both an assault that had taken place more than 72 hours earlier, and with no assault having occurred.

As previously noted, several other individuals resided with appellant and S.R. during the time period the alleged incidents occurred. The defense called five of these individuals, including S.R.'s mother, to testify as witnesses. None of these witnesses stated that they had seen any inappropriate behavior or touching on the part of appellant towards S.R.

Appellant argues that the evidence is legally and factually insufficient to support his conviction for the two counts of aggravated sexual assault. In particular, appellant asserts that the evidence to prove he penetrated the anus of S.R. with his sexual organ and finger, and penetrated the sexual organ of S.R. with his tongue, is so weak that it cannot sustain his conviction. To support his argument, appellant points to the lack of physical evidence of sexual assault and the lack of eyewitnesses. Appellant further argues that this Court should abandon the longstanding rule that a conviction under penal code section 22.021 is supportable on the uncorroborated testimony of the child victim, a rule which appellant asserts originated from the Austin Court of Appeals' holding in Hellums v. State. ⁽²¹⁾

Though this Court is not bound by the holdings of the Austin Court of Appeals, it is bound by the code of criminal procedure. ⁽²²⁾ The code explicitly provides that conviction under penal code section 22.021 is supportable on the uncorroborated testimony of the victim of the sexual offense; furthermore, the victim is not required to inform another person of the alleged offense if the victim was seventeen years of age or younger at the time the offense is alleged to have occurred. ⁽²³⁾ This Court has held as recently as August of 2006 that the testimony of a child sexual abuse victim alone is sufficient to support a conviction for aggravated sexual assault, ⁽²⁴⁾ and we find no reason to abandon this position today.

In the instant case, it is undisputed that the child was not appellant's spouse and was younger than fourteen years of age at the time of the alleged sexual contact. S.R. described the incidents alleged in the indictment that occurred on or about the alleged dates. She also described the way the sexual conduct felt. The jury, as the exclusive judge of the credibility of witnesses and the weight to be afforded their testimony, chose to believe S.R. ⁽²⁵⁾

After reviewing this evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found the essential elements of aggravated sexual assault beyond a reasonable doubt. Therefore, the evidence is legally sufficient to support the jury's finding that appellant committed two counts of aggravated sexual assault.

Moreover, we conclude that the facts in this case that render the evidence legally sufficient also render the evidence factually sufficient. After reviewing the evidence neutrally, we do not find that the proof of guilt is greatly outweighed by evidence to the contrary, nor is it so weak as to undermine confidence in the jury's determination. Thus, we further conclude that the evidence was factually sufficient to support appellant's conviction for two counts of aggravated sexual assault.

Because we find the evidence both legally and factually sufficient to prove appellant's conviction for two counts of aggravated sexual assault, we overrule appellant's sole issue in cause number 13-06-00124-CR.

2. Indecency With a Child

In regard to his conviction for indecency with a child, appellant argues the evidence was legally and factually insufficient to prove that he engaged in sexual conduct with S.R. by touching her breast. S.R. testified that appellant rubbed and sucked on her breasts. Furthermore, Leslie Kallus, the SANE nurse, testified that during her examination on March 12, 2004, S.R. told her that a week earlier, while she was in the shower, appellant opened the curtain and grabbed her breast.

Again, we note that the jury is the exclusive judge of the credibility of witnesses and the weight to be given their testimony. ⁽²⁶⁾ A child victim's testimony alone is sufficient to support a conviction for indecency with a child by contact. ⁽²⁷⁾ Additionally, testimony regarding a child victim's outcry statement can be sufficient to sustain a conviction for indecency with a child. ⁽²⁸⁾

As to legal sufficiency, viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant engaged in sexual conduct by touching S.R.'s breast. Also, when viewed in a neutral light, we conclude that the evidence is not so weak that the jury's verdict was clearly wrong and manifestly unjust, nor is the contrary evidence so strong that the standard of proof could not have been met. Accordingly, we hold that the evidence was factually sufficient to support appellant's conviction for indecency with a child.

Because we find the evidence legally and factually sufficient to support appellant's conviction for indecency with a child, we overrule appellant's sole issue in cause number 13-06-00126-CR.

E. Conclusion

Having overruled each of appellant's issues on appeal, we affirm the judgments of the trial court. _____________________________

LINDA REYNA YAÑEZ, Justice

Do not publish. Tex. R. App. P. 47.2(b).

Memorandum opinion delivered and filed

this the 26th day of July, 2007.

1. The aggravated sexual assault charges were brought in trial cause number 04-8-21, 137-D and appellate cause number 13-06-00124-CR. The first count alleged appellant intentionally or knowingly penetrated the anus of a child younger than fourteen years of age with his sexual organ and finger. The second count alleged appellant intentionally or knowingly penetrated the sexual organ of a child younger than fourteen years of age with his tongue. See Tex. Pen. Code Ann. § 22.021 (Vernon 2003).

2. The indecency with a child charge was brought in trial cause number 04-8-21, 138-D and appellate cause number 13-06-00126-CR. The charge alleged that appellant, with the intent to arouse or gratify sexual desire, intentionally or knowingly engaged in sexual conduct with S.R., a child younger than 17 years and not the spouse of the defendant, by touching her breast. See Tex. Pen. Code Ann. § 22.11 (Vernon 2003).

3. Ordinarily, the statements made by S.R. to these two individuals would be inadmissible at trial as hearsay. See Tex. R. Evid. 802. However, outcry testimony admitted under article 38.072 of the Texas Code of Criminal Procedure is admitted as an exception to the hearsay rule, meaning it is considered substantive evidence, admissible for the truth of the matter asserted in the testimony. Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991).

4. Jackson v. Virginia, 443 U.S. 307, 318-319 (1979); Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006); Hampton v. State, 165 S.W.3d 691, 693 (Tex. Crim. App. 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004).

5. Jackson, 443 U.S. at 319.

6. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993) (en banc); Ozuna v. State, 199 S.W.3d 601, 604 (Tex. App.-Corpus Christi 2006, no pet.).

7. See Watson v. State, 204 S.W.3d 404, 414-17 (Tex. Crim. App. 2006).

8. Id. at 415.

9. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

10. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981).

11. Id.; Ozuna, 199 S.W.3d at 605.

12. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000).

13. Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B) (Vernon Supp. 2006).

14. Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978); Ozuna, 199 S.W.3d at 606.

15. Ketchum v. State, 199 S.W.3d 581, 590 (Tex. App.-Corpus Christi 2006, pet ref'd); see Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990).

16. Garcia, 563 S.W.2d at 928; Kemple v. State, 725 S.W.2d 483, 485 (Tex. App.-Corpus Christi 1987, no writ).

17. See Rodriguez, 819 S.W.2d at 873; Kimberlin v. State, 877 S.W.2d 828, 831 (Tex. App.-Fort Worth 1994, pet. ref'd).

18. Tex. Pen. Code Ann. § 21.11(a)(1) (Vernon 2003).

19. Id. § 21.11(c)(1).

20. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981); see Robertson v. State, 871 S.W.2d 701, 705 (Tex. Crim. App. 1993).

21. Hellums v. State, 831 S.W.2d 545, 547 (Tex. App.-Austin 1992, no pet.).

22. See Tex. Code Crim. Proc. Ann. art. 1.02 (Vernon 2005).

23. Id. art. 38.07 (Vernon 2005).

24. See Ketchum, 199 S.W.3d at 590.

25. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979).

26. Id.; Sharp, 707 S.W.2d at 614.

27. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005).

28. See Rodriguez, 819 S.W.2d at 873; Gallegos v. State, 918 S.W.2d 50, 55 (Tex. App.-Corpus Christi 1996, pet ref'd).