Desmond Jerod Grays v. State

Affirmed and Memorandum Opinion filed July 15, 2008

Affirmed and Memorandum Opinion filed July 15, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00742-CR

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DESMOND JEROD GRAYS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 43,523

M E M O R A N D U M   O P I N I O N

Appellant, Desmond Jerod Grays, was indicted on the felony offense of aggravated sexual assault of a child.  The jury returned a guilty verdict, and the trial court sentenced him to five years= confinement in the Texas Department of Criminal Justice, Institutional Division.  In two issues, appellant challenges the legal and factual sufficiency of the evidence supporting the verdict.  We affirm.

Factual and Procedural Background

At the guilt-innocence phase of trial, the State offered the testimony of Crystal Pena, the complainant, and one Rosenberg city police officer.  The defense did not call any witnesses.

The complainant testified she met appellant in June or July of 2005, when she was thirteen years of age.  She explained that her birthday is on July 18, and thatCalthough she was only thirteen at the time she met appellantCshe told him she was sixteen years of age.  She testified after she and appellant had met, they exchanged telephone numbers and talked on the phone on a daily basis.

One night, the complainant called appellant and invited him to come over to her apartment, where she lived with her parents and three siblings.  She testified that after appellant arrived, the two of them watched television in the living room, and then proceeded to her bedroom, where they had sexual intercourse.  Specifically, she explained that she and appellant Awent to my room. We went on my bed.  I took off myCtook off my shorts, took off my underwear. [Appellant] took off his shorts, his boxers, and from there, we just startedCstarted having sex, and he put hisCput his [penis] inside my vagina . . . .@  She further testified that the sex was consensual, and that she was certain that the incident occurred before her fourteenth birthday because it happened in late June/early July, and she turned fourteen in the middle of July.^[1]

In December 2005, the complainant informed Officer Colin Davidson of the Rosenberg Police Department of the sexual assault.  Officer Davidson testified that, after he obtained permission from her parents, he asked the complainant to obtain appellant=s admission to the sexual assault via a recorded telephone conversation.  She agreed, and recorded appellant=s admission to the offense on a microcassette that was later admitted into evidence at trial and played for the jury.^[2]

Officer Davidson later arrested appellant and interviewed him regarding the sexual assault.  During the interview, which was recorded on videotape, appellant admitted to having Asexual intercourse@ with the complainant.^[3] The videotape was also admitted into evidence at trial and played for the jury.

Appellant was subsequently indicted on the felony offense of aggravated sexual assault of a child.  He pleaded not guilty, and requested a jury trial.  The jury returned a guilty verdict, and the trial court sentenced appellant to five years= confinement in the Texas Department of Criminal Justice, Institutional Division.  This appeal followed.

Issues on Appeal

In two issues, appellant challenges the legal and factual sufficiency of the evidence supporting the verdict.  Essentially, appellant argues that the complainant=s testimony, standing alone, should be insufficient to warrant a conviction in this case.  He asserts that the State presented no medical evidence of a sexual assault or physical evidence identifying him as the perpetrator.  And, despite his videotaped confessionCin which he admits to having sexual intercourse with the complainantCappellant argues that the State presented nothing more at trial than Arank uncorroborated testimony of an alleged sexual assault victim,@ and that the evidence supporting the verdict is therefore legally and factually insufficient.

Analysis of Appellant=s Issues

A.      Standards of Review and Applicable Law

When reviewing challenges to both the legal and factual sufficiency of the evidence supporting the verdict, we first review the legal sufficiency challenge. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).  In reviewing the legal sufficiency of the evidence, we look at the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).  Although we consider all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998).

In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light. See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 134.  We may set the verdict aside if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)).  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 Watson, 204 S.W.3d at 414 (stating that an appellate court should not reverse a verdict it disagrees with unless it represents a manifest injustice, though supported by legally sufficient evidence).  Thus, while we are permitted to substitute our judgment for that of the jury when considering credibility and weight determinations, we may do so only to a very limited degree. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

A person commits the offense of aggravated sexual assault of a child if he intentionally or knowingly causes the penetration of the sexual organ of a child^[4] by any means, and the child is younger than fourteen years of age. Tex. Penal Code _ 22.021(a)(1)(B)(i) & (a)(2)(B).  The State does not have to prove that the defendant knew the victim was younger than fourteen years of age. See Vasquez v. State, 622 S.W.2d 864, 865B66 (Tex. Crim. App. 1981) (holding that the State does not have to prove that defendant knew victim to be younger than seventeen years of age, because that would recognize defense of ignorance or mistake, contrary to legislative intent); see also Jackson v. State, 889 S.W.2d 615, 617 (Tex. App.CHouston [14th Dist.] 1994, pet. ref=d (AThe State has long denied the defense of ignorance or mistake in relation to sexual offenses involving children.@).

The uncorroborated testimony of a sexual assault victim under fourteen years of age alone is sufficient to support a conviction for aggravated sexual assault of a child. See Tex.Code Crim. Proc. art. 38.07(a).^[5] There is no requirement that physical, medical, or other evidence be proffered to corroborate the victim=s testimony. See Sandoval v. State, 52 S.W.3d 851, 854 n.1 (Tex. App.CHouston [1st Dist.] 2001, pet. ref=d) (stating that medical evidence and corroborating testimony were not necessary to support conviction for aggravated sexual assault of a child); see also Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978) (concluding that victim=s testimony alone is sufficient evidence of penetration in prosecution for aggravated rape, without medical, physical, or other evidence).  With this in mind, we proceed to appellant=s specific arguments.

B.      Application of Law to the Facts

1.       Legal Sufficiency

First, appellant complains that the evidence supporting the verdict is legally insufficient due to a lack of physical evidence and corroborating testimony.  He asserts that there was no medical evidence of a sexual assault, there was no physical evidence identifying him as the perpetrator, and that the complainant=s testimonyCwhich, according to him, was marked by credibility and reliability issuesCwas nothing more than Arank uncorroborated testimony of an alleged sexual assault victim.@  He argues that this testimony, standing alone, should be insufficient to warrant a conviction for aggravated sexual assault of a child.  We disagree.

Regardless of what appellant contends should be the state of the law in Texas, it is beyond contention that the uncorroborated testimony of a sexual assault victim alone is sufficient to support a conviction for aggravated sexual assault of a child. See Tex. Code Crim. Proc. art. 38.07(a). Thus, the complainant=s testimonyCthat appellant put his penis inside her vaginaCalone is sufficient to support appellant=s conviction for aggravated sexual assault of a child, even without physical or medical evidence. See id.; see also Sandoval, 52 S.W.3d at 854 n.1; Garcia, 563 S.W.2d at 928.

Furthermore, contrary to appellant=s contention, the complainant=s testimony was corroborated by appellant=s videotaped confession.  This confession, which was admitted into evidence at trial, contains appellant=s admission to having sexual intercourse with the complainant.  Appellant=s videotaped confession to the offense is sufficient to support his conviction for aggravated sexual assault of a child. See Herring v. State, 202 S.W.3d 764, 766 (Tex. Crim. App. 2006) (holding that appellant=s admission that he possessed a knife, coupled with the complainant=s testimony that appellant threatened to kill him and took his money, was legally sufficient evidence of Ause@ to sustain conviction for aggravated robbery); Mitchell v. State, 669 S.W.2d 349, 350 (Tex. App.CHouston [14th Dist.] 1984, no pet.) (holding that confession was sufficient evidence of appellant=s guilt to sustain conviction for burglary with intent to commit theft); Burke v. State, 27 S.W.3d 651, 656 (Tex. App.CWaco 2000, pet. ref=d) (holding that appellant=s confession to sexually assaulting the complainant, in conjunction with the complainant=s testimony, was sufficient to sustain conviction for aggravated sexual assault).

Therefore, we hold that the evidence supporting the verdict is legally sufficient.  We overrule appellant=s first issue.

2.       Factual Sufficiency

Appellant next contends that the evidence supporting the verdict is factually insufficient.  He asserts that the complainant=s testimony is unreliable due to her lack of memory regarding certain facts, inconsistencies in her story, and a motive to lie about the charges against appellant.^[6] Appellant argues that, because no physical evidence was introduced at trial to support the complainant=s allegations, and because there was Anothing presented to the jury which corroborates [the complainant=s] account that sexual intercourse occurred,@ the State=s evidence was so weak and contrary to the overwhelming weight of the evidence to be factually insufficient.  Again, we disagree.

As the State correctly notes, appellant had the opportunity to expose any credibility issues at trial, as well as any motives for the complainant=s testimony.  The jury was free to evaluate her testimony and believe some, all, or none of it. See Williams v. State, 226 S.W.3d 611, 615 (Tex. App.CHouston [1st Dist.] 2007, no pet.) (citing Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986)).  We are mindful that we must exercise appropriate deference to the jury=s credibility determinations, to avoid substituting our judgment for that of the jury. See Drichas, 175 S.W.3d at 799; Watson, 204 S.W.3d at 414; Marshall, 210 S.W.3d at 625. 

Furthermore, as we have already explained, the complainant=s testimony at trial was corroborated by appellant=s videotaped confession.  Thus, considering the evidence in a neutral light, we cannot say that the evidence is so weak that the verdict is clearly wrong and manifestly unjust. Nor can we say that the verdict is against the great weight and preponderance of the evidence.  The evidence supporting the verdict is therefore factually sufficient. See Watson, 204 S.W.3d at 414B15.  We overrule appellant=s second issue.

Conclusion

Having addressed and overruled each of appellant=s issues, we affirm the judgment of the trial court.

/s/      Frank C. Price

Senior Justice

Judgment rendered and Memorandum Opinion filed July 15, 2008.

Panel consists of Chief Justice Hedges, Justice Boyce, and Senior Justice Price.^*

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

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^[1]  The complainant further testified that she and appellant had sexual intercourse a second time in late August/early September, after her fourteenth birthday.  However, during his videotaped interview with Officer Davidson, appellant denied having sexual intercourse with the complainant more than once.

^[2]  As transcribed in the record, the following exchange occurred on the microcassette recording of the complainant=s and appellant=s telephone conversation:

Complainant:      Remember the time that we had sex in my house?

Appellant:          Yes.

Complainant:      The first time?

Appellant:          Yes.

^[3]  As transcribed in the record, the following exchange occurred on the videotape of appellant=s interview:

Officer Davidson:           Did you have sex with [the complainant]?

Appellant:                      Yes, sir.

Officer Davidson:           Okay.  That=s why you=re here.

Appellant:                      Okay.

Officer Davidson:           Yeah.  She=s under 17.

Appellant:                      See, that=s what I didn=t know.  Yeah, I know, but [she] told me she was 18.  It only happened one time, and it=sCit=s been a long time.  There=s not been nothing recently.  It=s something a long time ago.  It=s not that (inaudible) recent.

*   *   *

Officer Davidson:           When I say that you had sex with her, what do I mean by that?  What=s your take on that?  Sexual intercourse?

Appellant:                      I mean, basicallyCyeah, basically like that, yeah.

Officer Davidson:           Okay.  And how many times?  You say just one time?

Appellant:                      Yes, sir.

^[4]  The Texas Penal Code defines Achild@ as a person younger than seventeen years of age who is not the spouse of the defendant. Tex. Penal Code _ 22.011(c)(1).

^[5]  Section 38.07 of the Code of Criminal Procedure contains an important caveat:  in order for the victim=s uncorroborated testimony to be sufficient to sustain a conviction, the victim must have informed any person, other than the defendant, of the offense within one year after the date on which the offense is alleged to have occurred. See Tex. Code Crim. Proc. art. 38.07(a).  However, if at the time of the alleged offense the victim is fourteen years of age or older and younger than seventeen, the requirement that the victim inform another person of the offense does not apply. Id. art. 38.07(b)(1).

^[6]  Specifically, appellant asserts that the complainant lied to prevent getting in trouble with her family if she failed to testify against appellant regarding extraneous offenses allegedly committed against her family.

^*  Senior Justice Frank C. Price sitting by assignment