Andrew William Gossett v. State

NUMBERS 13-00-166-CR AND 13-00-167-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

ANDREW WILLIAM GOSSETT

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 363rd District Court of Dallas County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Justice Rodriguez

Andrew William Gossett, appellant, was convicted of aggravated sexual assault and sentenced to fifty years confinement. Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2001). At the time of the commission of the offense, appellant was on probation for driving while intoxicated, third offense. The State filed a motion to revoke appellant's probation based on, inter alia, the aggravated sexual assault. The trial court revoked appellant's probation and sentenced him to five years confinement. By one issue, appellant challenges the factual sufficiency of the evidence supporting his conviction for aggravated sexual assault and the revocation of his probation. We affirm.

S.G., the complainant, testified she was waiting in her car for a traffic light change when a man, whom she identified at trial as appellant, entered her car with a gun. Appellant held the gun towards her and told her that if she did not do what he said, he would kill her. Appellant had her drive to a secluded industrial area, and raped her orally and vaginally. He then had her drop him off at an intersection.

S.G. drove to a hospital and reported the incident. A rape examination was conducted and the results were tested. A half centimeter of the interior of S.G.'s vulva was lacerated, which was consistent with forced entry. Seminal fluid was found, but there was an insufficient quantity of spermatozoa in the fluid to perform DNA testing. A forensic DNA analyst testified that she could not make a determination as to the identity of the assailant.

A forensic investigator with the police department testified she dusted for fingerprints and managed to lift one, but it had insufficient detail for comparison. A supervisor for the Southwest Institute of Forensic Science testified that hair samples found in S.G.'s vehicle did not match samples obtained from appellant.

Appellant gave a written statement to the police in which he claimed to have spent the evening, apart from a trip to a store to purchase cigarettes, at his girlfriend's apartment. S.G. identified appellant as the assailant out of a photographic lineup. After the jury found appellant guilty and the court assessed punishment, the trial court held a probation revocation hearing. The court took judicial notice of the trial testimony and revoked appellant's probation. This appeal ensued.

In his sole issue, appellant maintains there is factually insufficient evidence that he was the perpetrator of the aggravated sexual assault.

We review all the evidence in a factual sufficiency challenge and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 131 (Tex. Crim. App.1996). We apply this test to the facts without the prism of "in the light most favorable to the verdict." Clewis, 922 S.W.2d at 135. The review must be appropriately deferential so as to avoid substituting this Court's judgment for that of the jury. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

A person commits sexual assault if the person intentionally or knowingly causes penetration of the anus or female sexual organ of another, without that person's consent, or causes the penetration of the mouth of another by the sexual organ of the actor, without that person's consent. Tex. Pen. Code Ann. § 22.011 (Vernon Supp. 2001). A person commits aggravated sexual assault if the person commits sexual assault and by acts or words places the victim in fear of death or serious bodily injury, or uses or exhibits a deadly weapon during the assault. Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2001).

Appellant urges that there is factually insufficient evidence because S.G. gave conflicting descriptions of the assailant, the State did not provide any physical evidence linking appellant to the assault, and a videotape shows appellant at a convenience store near the time of the offense in clothing different from what S.G. described.

The evidence shows Police Officer J.B. Price spoke with S.G. after the assault and wrote a report. According to Officer Price, S.G. told him the suspect was wearing a white T-shirt and a blazer type jacket.⁽¹⁾

During trial, S.G. remembered the assailant wearing blue jeans and "a dark T-shirt, plaid or dark blue type shirt at the top." He was unshaven, and his hair was kind of dirty and a little bit long. The assailant seemed huge to S.G., probably because "she was physically on [her] knees and physically beneath him." She remembered him wearing a coat, which she described as "being like a nubby kind of texture and a tweed brown type color and it had a lapel on it." It was loose fitting, and was consistent with the shape of a sport coat. She also described his clothing as follows:

Q. You mentioned something about a blue plaid. Do you remember that?

A. Yes. It was like ­ he had on like a T-shirt and then another ­ the ­ like a ­ almost a flannel type shirt. And then the jacket was on over that and the two ­ the jacket and the kind of flannel type shirt were open, both of them. And the T-shirt was underneath.

On cross-examination, S.G. indicated the assailant was wearing large, baggy blue jeans. She told Officer Price the assailant was wearing "[b]lue jeans or dark pants, dark tennis shoes, black leather tennis shoes, a dark T-shirt and tweed type jacket." He also had a State of Texas map ring on his finger. She told officers that she thought the assailant was around 6'2" or 6'3" in height and weighed around 230-240 pounds. S.G. testified that at trial appellant looked to be about 5'11" and 190-195 pounds.

Police Officer David Blair testified he was on duty and had heard a report of a sexual assault on the night in question. He observed a gentleman standing outside a pickup by an apartment complex between two and three a.m. When the person looked at him, he gave him "that deer-in-the-headlights look." The suspect had a tan or light brown jacket over his left arm. He "had dark hair, a blue plaid long sleeved shirt that was heavy and appeared to be an insulated plaid shirt and dark pants I believe to be blue jeans."

Detective Marco Garza showed S.G. a photographic line-up, and was surprised at how quickly S.G. picked out appellant as the assailant. He took a statement from S.G., who described her assailant as wearing baggy blue jeans and a dark colored T-shirt. Garza testified that officers searched appellant's apartment and found a black shirt, a blue T-shirt, a black tennis shoe, black loafers, some more tennis shoes, and some camouflage pants. Officers also recovered a flannel jacket, blue and white in color, and a winter coat, brown in color, from appellant's apartment. They did not find a ring, a gun, or a dark tweed sport coat, and Detective Garza did not remember the officers finding a white T-shirt or any blue jeans.

As appellant notes, there is some inconsistency among the various witnesses as to what S.G. reported the assailant was wearing at the time of the assault. However, much of what S.G. testified to was corroborated by other witnesses. For example, Officer Blair testified he witnessed appellant wearing a plaid shirt and blue jeans and carrying a tan or brown jacket. Likewise, S.G. testified her assailant was wearing a dark plaid shirt, blue jeans, and a tweed coat that was brown. Officers found many items at appellant's apartment matching the clothing described by S.G.

Appellant also claims S.G.'s physical description of her assailant is inconsistent and not reflective of appellant's physical appearance. Although she told officers the assailant was around 6'2" or 6'3" in height and weighed around 230-240 pounds, S.G. testified at trial that appellant looked about 5'11" and 190-95 pounds. S.G. explained that appellant seemed huge to her during the assault because she was underneath or below him. S.G. identified appellant as her assailant by his face; she described a scar on the assailant's face to Officer Price at the hospital, and identified the scar on appellant at trial. Moreover, S.G. identified appellant as her assailant in the photographic line-up so fast that it surprised the officer.

The jury was presented with conflicting evidence regarding the identity of appellant as the assailant, and we will not intrude upon the jury's role as the sole judge of the weight and credibility of the witnesses. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

Appellant further contends the evidence is factually insufficient because there is no physical evidence linking him to the assault in spite of the rape examination performed. S.G.'s genitalia was lacerated, which was consistent with forced entry. S.G. identified appellant as her assailant and described his physical appearance and his clothing. That no hairs were found to match appellant and no DNA samples were taken linking appellant to the assault, does not render the evidence insufficient. See Murphy v. State, 4 S.W.3d 926, 930 (Tex. App.--Waco 1999, pet. ref'd) (lack of physical evidence of penetration in sexual assault case did not render evidence factually insufficient when treating physician testified that her examination could neither establish nor preclude possibility that victim's sexual organ was penetrated; victim communicated the area on her body that was touched; and there was other medical testimony regarding structure of female genitalia).

Finally, appellant notes that a video tape was played before the jury and Detective Garza testified it showed appellant at a convenience store near the time of the offense wearing camouflage pants and a white T-shirt. This attire would seem inconsistent with S.G.'s description of the assailant's attire. However, the jury could have reasonably concluded appellant changed clothes and proceeded to the convenience store to establish an alibi. A decision is not manifestly unjust merely because the defense presented a reasonable alternative hypothesis. See Lee v. State, 21 S.W.3d 532, 542 (Tex. App.--Tyler 2000, no pet.); Richardson v. State, 973 S.W.2d 384, 387 (Tex. App.--Dallas 1998, no pet.).

After reviewing all the evidence, we are unable to conclude that the jury's finding that appellant was the perpetrator of the aggravated sexual assault is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Thus, there is factually sufficient evidence to support the verdict.

We next address appellant's appeal from the revocation of his probation. Appellate courts review an order revoking probation under the abuse of discretion standard. Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984). Because the evidence is sufficient to support appellant's conviction for aggravated sexual assault, it is also sufficient, under the lesser "preponderance" standard applicable in probation revocation proceedings, to support the trial court's finding that appellant violated a condition of his probation.⁽²⁾ Martinez v. State, 6 S.W.3d 674, 681 (Tex. App.­Corpus Christi 1999, no pet.) (citing Thomas v. State, 708 S.W.2d 861, 864 (Tex. Crim. App. 1986)). The trial court did not abuse its discretion in revoking appellant's community supervision. Accordingly, appellant's sole issue is overruled.

The judgments of the trial court are AFFIRMED.

NELDA V. RODRIGUEZ

Justice

Do not publish

.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 12th day of April, 2001.

1. Appellant asserts S.G. described her assailant as 5'8" to 6' tall with a scar on the right side of his face from the corner of his mouth and up his cheek. These descriptions are not found in Officer Price's testimony. Instead, they are taken from appellant's cross-examination.

Appellant asked S.G., "Do you recall telling Officer Price that the person who assaulted you was five feet eight to six feet tall?" S.G. responded, "Honestly I don't remember everything that was said that particular evening." In further cross-examination, the following colloquoy transpired:

Q. Did you state to Officer Price that the person who assaulted you had a scar on the right side of his face starting at the corner of his mouth and continuing up his cheek?

A. I said that he had ­ I don't remember saying at the corner of his mouth. But I remember saying he had a scar on the right side of his face and I remember drawing it with my finger on my own cheek.

Q. So your answer to my question is no, you did not tell him that?

A. My answer to you is I don't know.

Q. All right. Did you tell him a scar on his face starting at the corner of his mouth?

A. I don't know.

Based on the above testimony and a review of the record, we disagree with appellant's assertion that S.G. described her assailant as 5'8" to 6' tall with a scar on the right side of his face from the corner of his mouth up his cheek.

2. The State's motion to revoke alleged, inter alia, that appellant violated a condition of his probation by violating the laws of the State of Texas.