David Dwayne Jackson v. State

Opinion issued October 28, 2004

  In The  

Court of Appeals

For The  

First District of Texas

---

NO. 01-03-00982-CR

---

DAVID DWAYNE JACKSON, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 940623

---

MEMORANDUM OPINION

          Appellant, David Dwayne Jackson, pleaded not guilty to the felony offense of aggravated sexual assault of a child younger than 14 years of age. The trial court found appellant guilty and sentenced him to five years in prison. In one issue, appellant claims that the evidence is factually insufficient to sustain his conviction. We affirm.  

Background

          Complainant, who was 13 years old, and appellant, who was 18 years old, had been dating for three weeks. On October 9, 2002, at approximately 10:00 p.m., complainant and her cousin invited appellant and his friend, Bill, to come visit them. Complainant let appellant and Bill into the bedroom where she and her cousin were staying. While Bill and complainant’s cousin were on the floor, appellant and complainant lay on the bed. Appellant and complainant were on the bed talking with the lights turned off when appellant asked complainant if she wanted to have sex. Complainant replied no. Appellant then unzipped his pants and put a condom on. Appellant got on top of complainant, and they started kissing. Complainant removed her shorts, but left her panties on. Appellant moved her panties and put his penis in her vagina. At this point, complainant’s grandfather entered the room, and appellant hid under the bed. Appellant and Bill then left the house. At trial, appellant acknowledged lying on top of complainant, kissing her, and moving her panties “over to the side,” but denied penetrating her vagina with his penis.

 Factual Sufficiency of the Evidence   

          In his sole point of error, appellant challenges the factual sufficiency of the evidence to sustain his conviction for aggravated sexual assault of a child. When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786 (Tex. Crim. App. Apr. 21, 2004). A reviewing court may find the evidence factually insufficient in two ways. Id. at *7. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict , the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. In conducting a factual-sufficiency review, we must discuss the evidence that, according to appellant, most undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

          In conducting the factual-sufficiency review, we must also pay appropriate deference to the factfinder so that we do not substitute our judgment for that of the factfinder. Zuniga, 2004 WL 840786 at *4. Our evaluation should not intrude upon the factfinder’s role as the sole judge of the weight and credibilty given to any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). What weight to be given contradictory testimonial evidence is within the sole province of the factfinder because it turns on an evaluation of credibility and demeanor. Id. at 408-09. The factfinder is entitled to judge the credibility of the witness and may choose to believe all, some, or none of the testimony presented. Id. A person commits aggravated sexual assault of a child if the person intentionally or knowingly causes the penetration of the sexual organ of a child younger than 14 years of age by any means. Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B) (Vernon 2004). Appellant contends that the evidence is factually insufficient because (1) complainant’s testimony was the only evidence presented to show that penetration occurred, (2) no physical evidence was presented, (3) no medical evidence or expert testimony was presented to corroborate complainant’s testimony concerning penetration, (4) others present in the room during the commission of the offense did not testify, (5) complainant’s testimony regarding penetration was tentative and elicited by leading questions from the prosecutor, (6) complainant had a motive to portray appellant as the perpetrator and cast herself as the victim, and (7) the State did not effectively cross-examine or impeach appellant’s claim that, although he intended to have sex with complainant, he failed to do so because complainant’s grandfather interrupted them.  The State contends that no physical evidence of the sexual assault exists because appellant wore a condom and never ejaculated and because the complainant was only slightly penetrated. The only evidence of the sexual assault came from complainant, who testified that after she removed her shorts, appellant “scooted” her panties over and then penetrated her vagina with his penis. She explained that appellant’s penis did not fully penetrate her, but that it did enter her vagina a “little bit” and “it hurt a little bit, but not a lot.” The complainant’s uncorroborated testimony, standing alone, is sufficient to support a conviction for aggravated sexual assault of a child. See Sandoval v. State, 52 S.W.3d 851, 854 & n.1 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (holding that medical evidence corroborating sexual assault victim’s testimony not necessary to support conviction); Perez v State, 113 S.W.3d 819, 838 (Tex. App.—Austin 2003, pet. ref’d) (holding that testimony of child victim alone is sufficient to support conviction for aggravated sexual assault).

          Appellant also contends that he is more credible than complainant because complainant had an improper motive to accuse him of aggravated sexual assault, and because his testimony was not properly impeached on cross-examination. The trial court, as factfinder, had the opportunity to weigh the credibility of witnesses testimony and to reconcile conflicts in that testimony. Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). We conclude that the evidence supporting the verdict was not too weak to support the finding of guilt beyond a reasonable doubt and that the contrary evidence is not strong enough to show that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga v. State, 811 S.W.2d 177, 180 (Tex. App.—San Antonio 1991, no pet.) (holding penetration, however slight, will sustain sexual assault allegation). We hold that, after reviewing all of the evidence in a neutral light, the trial court was rationally justified in finding beyond a reasonable doubt that appellant committed the offense of aggravated sexual assault. See Zuniga, 2004 WL 840786 at *7.

          We overrule appellant’s sole point of error.  

Conclusion

          We affirm the judgment of the trial court.                             

                                                             Elsa Alcala

                                                             Justice

Panel consists of Chief Justice Radack and Justices Keyes and Alcala.

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