John Henry Mearis v. State

Affirmed and Memorandum Opinion filed July 31, 2007

Affirmed and Memorandum Opinion filed July 31, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00501-CR

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JOHN HENRY MEARIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 1033059

M E M O R A N D U M   O P I N I O N

Appellant, John Henry Mearis, was charged by indictment with the felony offense of aggravated sexual assault of a child.  Appellant pleaded Anot guilty,@ and his case was tried to a jury.  The jury found him guilty of the offense; after appellant pleaded Anot true@ to an enhancement allegation, the court sentenced appellant to life in the Texas Department of Criminal Justice, Institutional Division.  On appeal, appellant challenges only the factual sufficiency of the evidence to convict him.  We overrule appellant=s issue and affirm the trial court=s judgment.

Factual Background

On April 6, 2005, E.S., a thirteen-year-old girl and the oldest of five children, was left in charge of her siblings while her mother worked.  At around 7:00 p.m., E.S. and her sisters went across the street to play with the children who lived across the street.  The children across the street were home, but their mother was not.  Upon entering the house, E.S. saw three menCB.J., Leon, and appellant.  The men were barbecuing and drinking, and the younger children began watching a movie, while E.S. did the hair of two of the neighbor children.  

E.S. needed a brush and comb to style the hair of one of the children.  She went upstairs to look for them, and found the items on a bed in one of the upstairs bedrooms.  After she went in the room to collect the items, the light in the room went out and the door closed.  In the light from the hallway, before the door was closed, E.S. could see appellant=s face.  Appellant moved towards E.S., telling her to be quiet.  He shoved her face-down on the bed and removed her dress, shorts, and panties.  Appellant said that he wanted to Amake [her] a woman.@  Appellant moved her legs apart with his leg and proceeded to have intercourse with E.S. 

Appellant=s niece, the girl whose hair was being styled, came upstairs and was heard outside the door to the bedroom calling for appellant.  Appellant replied, AI=m getting dressed.@  E.S. got up and began putting her clothes on, and she saw appellant moving his hand on his penis.  Appellant then pulled his pants on, moved a basket of some sort that was blocking the door, and left the room. 

E.S.=s friend and one of E.S.=s sisters were in the room next door and E.S. went into that room, crying and shaking.  She began to tell the other girls what had happened, but   stopped because she saw appellant looking through the door at her, and she became frightened of him. After she finished talking to the girls, E.S. went home, and her siblings followed suit about ten minutes later. 

The following day, E.S. told her mother what happened in a note.  After reading the note, her mother became upset and went across the street and confronted appellant.  She came back to the house later and called the police.  The police spoke to E.S., and she told them what happened to her. After her interview, the police told E.S.=s mother to take her to a hospital.  E.S. was taken to the hospital where she was examined and a rape kit was done.  E.S. and her mother later gave statements to Detective Roscoe.

Sandra Martin, a sexual assault nurse examiner at Memorial Hermann Hospital, performed the sexual assault examination of E.S. on April 8, 2005, some 26 to 28 hours after the incident.  She testified that she did not find any tears or bruising of E.S.=s hymen, but that E.S.  had Apoint tenderness,@ meaning it hurt when touched.    E.S. also had point tenderness to her left groin and her right hip and some point tenderness to both sides of her inner thighs.  There were also superficial linear abrasions on her left and right thighs.  There was also a bruise on her outer right thigh.    Martin testified that the lack of tearing or bruising is unsurprising, and that it is very common to find no injury to female genitalia when performing sexual assault exams.  On cross-examination, Martin testified that DNA can be collected up to 96 hours after an assault. She also testified that she could not tell when the scratching or bruising actually occurred.               

Colleen Himes, a Criminalist 2 with the Houston Police Department Crime Laboratory, testified that she received for testing a sexual assault kit containing a vaginal smear, anal smear, head hair combings, pubic hair combings, vaginal swabs, anal swabs, known saliva swabs, fingernail scrapings, p1 right hand, p2 left hand, hand and fingernail swabs, undergarment/diapers, panties, and changing paper.   She also received a box containing panties, denim shorts and a denim dress.  No sperm cells were found in the vaginal and anal smears.  The vaginal and anal swabs, fingernail swabs and undergarment/diapers, panties tested negative for a prostate-specific antigen, and were therefore not forwarded for DNA testing.  No evidence of bodily fluid was found on the panties, shorts, or   dress either.  On cross-examination, Himes testified that the head hair and pubic hair combings were not tested in any way.  She also testified that seminal fluid could be detected on a floor up to eight hours, and that motile sperm cells could be present up to 8 hours and nonmotile cells up to 144 hours, depending on circumstances. 

Officer J.T. Roscoe, with the Houston Police Department Juvenile Sex Crimes Division, testified that he interviewed E.S., E.S.=s sister, and E.S.=s mother.  He testified that E.S.=s statement to him was consistent with her statements to other police officers and to medical service providers.  E.S. also identified appellant in a photo spread that Officer Roscoe showed her. Officer Roscoe said that E.S. told him that there was a knock at the door and one of the girls called E.S.=s name before the sexual assault, rather than during, and that when appellant disrobed E.S. she was near the closet, rather than being held down on the bed.  Officer Roscoe admitted never obtaining hairs from appellant to compare with the hairs taken from E.S. during the sexual assault examination. 

E.S.=s sister testified that when E.S. went upstairs to get the brush and comb, she stayed gone for a long time, and E.S.=s sister and one of the neighbor children went upstairs to look for her.  When the two girls looked upstairs, they checked all of the rooms, except one with the door shut. When one of the girls opened the door a little, appellant said, AI=m in here right now,@ and the girls shut the door and walked away.  She testified that E.S. eventually came back downstairs, and did not appear upset, but that when the girls went home E.S. started crying but would not say what was bothering her. 

Appellant called his sister, the neighbor at whose house the assault took place, to the stand.  She testified that appellant had lived with her for some time.  He slept on the couch in the home=s living room.  On the day of the assault, appellant=s sister was out of town, attending a court hearing in Orange.  She testified that when E.S.=s mother learned of the incident she came over to the house and confronted appellant and B.J. She also testified that she had given instructions before she left for Orange that she did not want the children to be allowed to play around appellant. 

Appellant=s niece also testified.  She was the young girl who went searching for E.S. along with E.S.=s sister when E.S. took a long time coming back from getting the brush and comb from upstairs. She testified that her hair had been done and she had gotten ready for bed and had been watching television for a while when she and E.S.=s sister began looking for E.S., who was playing hide and seek with E.S.=s little brother. She and E.S.=s sister looked outside, in the garage, in E.S.=s house, and then came back over to her house and looked in the upstairs bedrooms, where they accidentally walked in on appellant as he was changing clothes.  She testified that she opened the door as appellant was pulling his pants down, that she did not enter the room, the light was on in the room, and that she saw nobody in the room with appellant.  She also testified that nobody was with her in the hallway when this occurred.  She testified that she asked appellant if he had seen E.S., and he said no.  She then closed the door and continued searching. She found E.S., apparently hiding, beside the niece=s  mother=s bed.  E.S. did not appear upset.  At that point, E.S. and all of her siblings went to their home.  Appellant=s niece did not remember E.S. ever going upstairs to get a brush.  On cross-examination, she testified that she and E.S.=s sister went searching for her after she left to get a brush, and that she was not in fact alone when she walked in on appellant changing. 

Appellant=s cousin B.J. also testified for the defense.  A barbecue had been started before he arrived in front of the home=s garage.  After dinner, he, Leon, and appellant went to the garage to listen to music, write, and rap.  Appellant and Leon were drinking an alcoholic beverage called papason.  He testified that he did not remember appellant ever leaving the garage that night.  He testified that he never saw or heard anything unusual from any of the children that night.  He did not remember any of the children leaving the house or coming outside to look for E.S.  He also admitted on cross-examination that he and appellant are very closeCcloser than most cousins and spend a great deal of time together.

Analysis

A.      Standard of Review

When we review the factual sufficiency of evidence, we view all the evidence in a neutral light, rather than in the light most favorable to the verdict.  See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  We may set the verdict aside 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.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Prible v State, 175 S.W.3d 724, 730 (Tex. Crim. App. 2005).  While we may disagree with the jury's conclusions, we must exercise appropriate deference to 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); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (stating that a Afactual sufficiency review is >barely distinguishable= from a Jackson v. Virginia legal sufficiency review.@).  In performing our review, we must discuss the evidence that, according to appellant, most undermines the jury verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

B.      Evidence Is Factually Sufficient

Appellant was charged with aggravated sexual assault of a child.  The indictment reads, in pertinent part,

...that in Harris County, Texas, John Henry Mearis, hereafter styled the Defendant, heretofore on or about April 6, 2005, did then and there unlawfully, intentionally and knowingly cause the penetration of the female sexual organ of [E.S.] hereinafter called the Complainant, a person younger than fourteen years of age and not the spouse of the Defendant, by placing his sexual organ in the female sexual organ of the Complainant. 

Appellant claims that the evidence is  factually insufficient to support his conviction, pointing to the State=s failure to continue forensic testing on head and pubic hair samples and possible seminal fluid evidence, and conflicts in testimony between E.S. and defense witnesses B.J. and appellant=s niece.

A sexual assault victim=s uncorroborated testimony alone can be sufficient to warrant a conviction.  See Tex. Code Crim. Proc. art 38.07; see also Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.CHouston [14th Dist.] 2002, pet. ref'd) (AThe testimony of a victim[,] standing alone, even when the victim is a child, is sufficient to support a conviction for sexual assault.@). 

There is a great deal of evidence supporting the jury=s finding.  The jury heard testimony from E.S. in which she clearly described the sexual assault, and said unequivocally that she recognized appellant as the man who assaulted her.  The jury also heard testimony of the nurse who performed the sexual assault exam on E.S., who testified that E.S. had point tenderness of the hymen and inner thighs and that there were bruises and scratches on her upper legs.   The jury heard Officer Roscoe testify that E.S.=s account of the incident was consistent as told to him, the responding officers, and the medical personnel.  E.S.=s sister also testified that appellant was upstairs in the bedroom with the door shut, while she and appellant=s niece searched for E.S.  She also testified that upon coming home that night, E.S. was upset and crying. 

The testimony of B.J., that appellant did not leave the garage all evening, is at odds with E.S.=s testimony.  The testimony of appellant=s niece also conflicts with E.S.=s testimony, although she recanted some of those differences on cross-examination.  We note that the defense  witnesses contradicted one another, B.J. saying that appellant did not leave the garage the entire evening after dinner, and appellant=s niece testifying that she walked in on appellant changing his clothes in one of the upstairs bedrooms.  It was up to the jury to decide the credibility of these witnesses.  See Drichas, 175 S.W.3d at 799.   The evidence on which appellant relies simply presents a different, albeit inconsistent, version of events.  A decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State.  Cain, 958 S.W.2d at 410. 

Appellant also points to the lack of forensic testing of appellant=s head and pubic hairs, and the failure to search for seminal fluid on the floor of the bedroom where the assault occurred.^[1] However, the lack of physical or forensic evidence is merely Aa factor for the jury to consider in weighing the evidence.@  Lee v. State, 176 S.W.3d 452, 458 (Tex. App.CHouston [1st Dist.] 2004), aff=d, 206 S.W.3d 620 (Tex. 2006).  It is not needed to corroborate E.S.=s testimony of sexual assault.  See Tex. Code Crim. Proc. art 38.07.  The jury had before it all the evidence it needed to convict appellant of aggravated sexual assault of a child.  See Glockzin v. State, 220 S.W.3d 140, 148 (Tex. App.CWaco 2007, pet. ref=d) (holding that when victim testified to facts establishing aggravated sexual assault, lack of physical or forensic evidence did not demonstrate factual insufficiency); see also Santos v. State, 116 S.W.3d 447, 459 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d) (rejecting argument that lack of fingerprints connecting defendant to robbery rendered evidence insufficient to support conviction). 

The only evidence pointed to by appellant calls for us to re-weigh the evidence, and substitute appellant=s opinion for the jury=s.  The jury had before it all the evidence it needed to convict, and the evidence favoring acquittal was not so strong as to render the jury=s verdict manifestly unjust or against the great weight and preponderance of the evidence.  See Johnson, 23 S.W.3d at 11. 

Conclusion

Finding the evidence factually sufficient, we overrule appellant=s sole issue, and affirm the judgment of the trial court. 

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed July 31, 2007.

Panel consists of Justices Anderson, Fowler, and Frost.

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

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^[1]  We assume that appellant is complaining of the failure to recover seminal fluid from the floor of the bedroom when he mentions in his brief the failure to continue testing on Apossible seminal fluid evidence.@ Appellant does not identify or explain the possible seminal fluid evidence on which he relies.