Zabzdyr, Michael Gary v. State ( 2006 )

Affirmed and Memorandum Opinion filed April 18, 2006

Affirmed and Memorandum Opinion filed April 18, 2006

In The

Fourteenth Court of Appeals

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NO. 14-05-00135-CR

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MICHAEL GARY ZABZDYR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 992,185

M E M O R A N D U M   O P I N I O N

A jury convicted appellant Michael Gary Zabzdyr of one count of aggravated sexual assault and sentenced him to fifteen years incarceration in the Texas Department of Criminal JusticeCInstitutional Division.  In four issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction.  We affirm.

I.  Factual and Procedural Background

On April 19, 2004, Deputy Tracy Wright of the Harris County Sheriff=s Office responded to a domestic disturbance call at appellant=s apartment.  Upon arrival, appellant initially did not allow Wright to enter.  After Wright told appellant that she would have to arrest him if he interfered with her investigation, appellant told Wright to do so. Wright handcuffed appellant and placed him in her patrol car while she interviewed appellant=s wife Marie and her daughter, G.Z. 

Marie informed Wright that the argument resulted from appellant=s refusal to allow her or G.Z. access to their clothes.  Marie also told Wright that appellant insisted on being present in the room when G.Z. bathed and dressed.  Wright became concerned when she learned G.Z. was seventeen years old. Wright then spoke with G.Z., who eventually informed her that appellant had sexually assaulted her when the family was on vacation in Louisiana.  Although Marie and G.Z. both gave Wright short written statements, Marie=s statement did not allege child abuse.  At the conclusion of her investigation, Wright uncuffed appellant and allowed him to leave the patrol car, but ordered him to stay away from the residence that evening.

Wright sent her report, including the written statements, to detectives in the child abuse unit of the  Sheriff=s Department.  Detective Wallace Dennis was assigned to the case on May 6, 2004, and he asked Marie and appellant to meet with him at the Children=s Assessment Center in Houston.  Dennis requested that G.Z. undergo a medical examination. Appellant and Marie met with counselors at the assessment center separately on June 7, 2004.  Dennis informed appellant for the first time that G.Z. had accused him of sexual assault.  Appellant declared his innocence, but declined to make a formal statement. Marie amended the written statement she gave to Wright.  In the amended statement, Marie informed Dennis that she first learned of inappropriate sexual contact between appellant and G.Z. only one week earlier. According to the statement, G.Z. told Marie that appellant had sex with her while using a condom when Marie was attending night school.

 G.Z. met with physicians at Memorial Hermann Hospital on June 9, 2004.  The nurse examiner included the following statement in her report:

Patient states, >My step-dad and I had sex last June (2003) and he rubbed my back last March. He takes me to his room and he did itChe stuck his penis in my vagina.=  >Only time.=

The report also affirmatively stated that no condom was used by appellant during the assault.  When meeting with the examining physician, however, G.Z. stated her stepfather had abused her from age 7 to age 13, but had no sexual contact since then.  The medical examination yielded no evidence of any trauma or recent sexual activity. 

Dennis forwarded a report containing summaries of appellant=s interviews, Marie=s interview, and G.Z=s medical examination to the Harris County District Attorney=s office, but the office did not accept charges at that time. In an effort to obtain more specific dates and locations regarding the alleged abuse, Dennis met with G.Z. on June 21, 2004.  At the conclusion of the interview, Dennis provided an affidavit to the District Attorney=s office that included the following statement:

On or about October 1st, 1999, when [G.Z.] was 13 years old, is when the sexual abuse first began. [G.Z.] says she was asleep in bed when [appellant] came to her, put his hand inside her panties, and began fondling her vagina. [Appellant=s] finger penetrated [G.Z=s] vagina for about 30 minutes. [G.Z.] asked [appellant] why he was doing this and [appellant] would not respond.  . . . [Appellant] sexually assaulted [G.Z.] from October 1999 to June 2003, after [G.Z.] turned 17 years old.  The assaults occurred 3 to 4 times a week.

In that interview, G.Z. also told Dennis that she and appellant first had intercourse in June 2003.  After receiving Dennis=s affidavit, the District Attorney=s office presented the information to a grand jury.  The grand jury returned an indictment on the following charge:

In Harris County, Texas, [appellant] . . . on or about October 1, 1999, did then and there unlawfully, intentionally, and knowingly cause the penetration of the FEMALE SEXUAL ORGAN of [G.Z.] . . . a person younger than fourteen years of age . . . by placing HIS FINGER in the FEMALE SEXUAL ORGAN of [G.Z.]

At trial, the State called Officer Wright, Marie, Detective Dennis, and Dr. Elizabeth Jones as witnesses.  The State also called Dr. Lawrence Thompson, a clinical psychologist, to testify about Aoutcry@ tendencies among child victims of sexual assault. Finally, the State called G.Z. to testify about appellant=s conduct.

After the State rested, appellant moved for a directed verdict on the grounds that the State did not prove that any of the alleged assaults occurred Aon or about October 1, 1999@ or that appellant penetrated G.Z.=s vagina with his finger.  The trial court denied the motion.  Appellant=s sole witness, Marie, confirmed the existence of inconsistencies between G.Z=s statements to her in 2004 and G.Z=s testimony at trial.  The jury found appellant guilty of aggravated sexual assault and sentenced him to fifteen years imprisonment.  This appeal ensued.

II.  Issues Presented

In four issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction.  In appellant=s first two issues, he argues the evidence is legally and factually insufficient to prove the required elements of the offense beyond a reasonable doubt.  In his third issue, appellant argues the evidence is legally insufficient because G.Z=s testimony was not credible as a matter of law.  In his fourth issue, appellant argues the evidence is factually insufficient because G.Z.=s testimony was not corroborated.

III.  Discussion

A.      Is the Evidence Legally Sufficient to Support a Conviction?

Appellant argues the evidence is legally insufficient to support his conviction because the State failed to prove that appellant caused his finger to penetrate G.Z=s vagina when G.Z. was younger than fourteen years of age. G.Z. was born May 19, 1986; therefore, the State had to prove beyond a reasonable that appellant=s conduct took place on or about October 1, 1999C but before May 19, 2000.^[1]  He also argues the evidence is legally insufficient because G.Z=s testimony was not credible as a matter of law.

1.       Standard of Review

In evaluating a legal‑sufficiency challenge, we view the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc).  The issue on appeal is not whether we, as a court, believe the State's evidence or believe that appellants=s evidence outweighs the State's evidence.  Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984) (en banc).   The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and of the strength of the evidence.  Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses= testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (en banc).  When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993) (en banc).  Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm.   McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997) (en banc).                  

2.       Analysis

The State called Marie and G.Z. to testify at trial. Marie stated that she attended night school in 1999 and 2000 when G.Z. was thirteen and fourteen years of age. G.Z. testified that the following events occurred while Marie was at class:

THE STATE: Did [appellant] ever touch you in a way that made you uncomfortable while your mom was gone, while she was going to school?

G.Z.: Yes.

* * *

THE STATE: While your mom was going to school, would you say it was a lot that this would happenCthat he would touch youCor just not very often?

G.Z.: A lot.

THE STATE: Would you describe to the jury how he would touch you while your mom was gone [sic] to school?

G.Z.: He would touch his hand on my vagina or his mouth.

* * *

THE STATE: [Appellant] would touch you with his hand?

G.Z.: Yes.

* * *

THE STATE: So he would touch your back on the skin or outside the clothes?

G.Z.: Both.

THE STATE: And then what would happen next?

G.Z.: He would start rubbing my stomach and my breasts and down on my vagina.

THE STATE: Would he just touch you on the outside or did he touch you on the inside of your vagina.

G.Z.: Outside.

THE STATE: Did he ever touch you during this time on the inside?

G.Z.: Yes, ma=am.

Although G.Z. also testified about other assaults that allegedly took place during this time period, the testimony cited above sufficiently establishes the charge alleged in the indictment.  See Stout v. State, 865 S.W.2d 609, 611  (Tex. App.CFort Worth 1993, pet. ref=d) (holding the testimony of a child victim accusing defendant of inserting his fingers into her sex organ was sufficient to prove the manner and means alleged in the indictment). 

Appellant also contends the evidence is legally insufficient because the testimony of G.Z. was not credible.  However, the jury is the exclusive judge of the facts proved, and of the weight to be given to the testimony.  Tex. Code Crim. Proc. art. 38.04 (West 2005).  As the trier of fact, the jury also is the sole judge of the credibility of the witnesses. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).

Viewed in a light most favorable to the verdict, we hold that a rational jury could have concluded beyond a reasonable doubt that appellant penetrated G.Z=s vagina with his finger at a time when G.Z. was younger than fourteen years of age.  We overrule appellant=s first and third issues.

B.      Is the Evidence Factually Sufficient to Support a Conviction?

Appellant argues the evidence is factually insufficient to support his conviction because the State failed to prove that appellant caused his finger to penetrate G.Z=s vagina when G.Z. was younger than fourteen years of age. He also argues the evidence was factually insufficient because G.Z=s injuries were not corroborated by other witnesses or by physical evidence.

1.       Standard of Review       

In reviewing the evidence for factual sufficiency, we ask only one question: Considering all the evidence in a neutral light, was the fact finder rationally justified in finding guilt beyond a reasonable doubt?  Zuniga v. State, 144 S.W.3d 477, 484  (Tex. Crim. App. 2004).  There are two ways the evidence may be factually insufficient: (1) the evidence supporting the verdict, if taken alone, is too weak to sustain the finding of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt.  Id. at 484B85.  In our evaluation of the evidence, we must be deferential to the jury=s findings and resist intruding on its role as the sole judge of the witnesses= credibility and of the weight to be given to the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc).  Our standard of review remains the same whether the evidence we consider is direct or circumstantial.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (en banc).  

2.       Analysis

a.       The State=s Evidence Supporting Conviction 

When reviewing the evidence for factual sufficiency, we look first to the evidence supporting the verdict to determine if it is too weak to uphold the jury=s finding of guilt beyond a reasonable doubt.  G.Z. testified that on Aa lot@ of occasions, appellant placed his fingers on the inside of her vagina when her mother was at night school.  Marie testified that she was attending night classes during 1999 and 2000, when G.Z. was thirteen and fourteen years old.  Although G.Z=s testimony was inconsistent with her prior statements, the jury was free to accept the truthfulness of her testimony despite any inconsistencies.  See Washington v. State, 127 S.W.3d 197, 204 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d).   Also, the jury may have considered the testimony of Dr. Thompson, who testified that child victims may disclose instances of abuse in portions rather than all at once, and may have difficulty matching instances of abuse to exact dates.

b.       Appellant=s Contrary Evidence

We now consider whether any contrary evidence is strong enough to have prevented the State from meeting its burden of proof beyond a reasonable doubt. Appellant directs us to the testimony of Dr. Jones, who stated that the medical examiner found no physical evidence of trauma and that G.Z=s hymen was intact.  In her testimony, however, Dr. Jones explained that the absence of trauma is not dispositive.  She also testified that it was possible for an object such as a finger or a penis to penetrate a vagina and leave the hymen intact.  Although appellant argues that Dr. Jones=s testimony places G.Z=s credibility in question, appellant ignores the portions that support G.Z=s testimony.  For a reviewing court to reverse under these circumstances would substantially intrude on the role of the jury as the finder of fact.  See Johnson, 23 S.W.3d at 8 (holding, Aunless the available record clearly reveals a different result is appropriate, an appellate court must defer to the jury=s determination concerning what weight to give contradictory testimonial evidence@) (emphasis added).

Finally, appellant asserts the evidence is factually insufficient to support his conviction because G.Z.=s testimony was not corroborated by other witnesses or by physical evidence.  As with appellant=s third issue above, however, the jury remains the sole judge of the witnesses= credibility and of the weight to be given to the evidence. The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault. Perez v. State, 113 S.W.3d 819, 838 (Tex. App.CAustin 2003, pet. ref=d); Tex. Code Crim. Proc. art. 38.07. 

Regarding the date of the alleged assault, G.Z. testified that the assault occurred when Marie was at night school.  Marie=s testimony as to the dates during which she took classes was uncontroverted.  After viewing all the evidence in a neutral light, we conclude the jury was rationally justified in finding guilt beyond a reasonable doubt.  We overrule appellant=s second and fourth issues.

IV.  Conclusion

In sum, we hold the evidence is both legally and factually sufficient to support appellant=s conviction.  The judgment of the trial court is affirmed.

/s/      Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed April 18, 2006.

Panel consists of Justice Fowler, Edelman, and Guzman.

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

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^[1]  It is well settled that the Aon or about@ language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period.  Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997) (en banc).