Devin Lamont Joseph v. State

Directory: J:\JudgeSharp\Rak\100093m

Opinion issued May 26, 2011.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-10-00093-CR

———————————

Devin Lamont Joseph, Appellant

V.

State of Texas, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Case No. 1164494

MEMORANDUM OPINION

A jury convicted appellant, Devin Lamont Joseph, of aggravated sexual assault of a child and assessed his punishment at twenty years’ confinement.[1]  In his sole point of error, appellant complains that the evidence is factually insufficient to support his conviction.  We affirm.

Background

The twelve-year old complainant, J.J., testified that she and her step-sister, Alycia,[2] slept over at their Aunt Yashica Joseph’s[3] boyfriend’s apartment following a party there earlier that evening.[4]  Appellant had been staying at this apartment for a few weeks.  J.J. and Alycia slept on the loveseat in the living room, appellant and two boys slept on the living room floor, and a third boy, Royal, slept on the couch.  Yashica and her boyfriend slept in the apartment’s only bedroom.

J.J. testified that she was awakened during the night by someone touching her inappropriately and upon opening her eyes, realized that it was appellant. Appellant, who was lying on the floor next to the loveseat, had placed his hand under her underwear and penetrated her vagina with his finger.  J.J. pushed appellant and ran away.  When she began to cry, Royal took her to the bedroom, where she told Yashica what had happened and spent the rest of the night.  The complainant testified that when she arrived home early the next morning, she told her parents what had happened and they reported the incident to the police.  Appellant was arrested at the apartment shortly thereafter.[5]

Yashica Joseph testified that the complainant was in tears when she and Royal knocked on the bedroom door in the early hours of the morning. The complainant told her that appellant touched her between her legs and on her buttocks and tried to kiss her.  Although Royal initially testified that he only observed the complainant’s covers moving during the night, on cross-examination he admitted that he had previously told a deputy that he saw appellant’s hand under the covers and had peeked under the covers and saw appellant touching the complainant and saw her push appellant away.  Royal explained that he had lied to the police because he was trying to look out for the complainant.

Dr. Reena Isaac, a forensic child abuse pediatrician at Texas Children’s Hospital, and Giselle Malone, a sexual assault nurse examiner, also testified.  According to the complainant’s medical records, the complainant was given a sexual assault examination by Dr. Emily Rosenfeld and Malone shortly after the incident.  The complainant told Malone and a social worker that appellant had inserted his finger into her vagina.  Malone testified that she noted a notch on the complainant’s hymen, a tear in the peritoneum area, and bruising on the complainant’s ano-genital area during the physical examination.  Dr. Isaac and Malone both testified that these injuries are consistent with the complainant’s claim of digital penetration but admitted on cross-examination that other types of blunt force trauma could cause genital bruising.

Appellant testified that he had slept through the night and was shocked when police informed him why he had been arrested.  Appellant claimed that he barely knew the complainant and he adamantly denied ever touching her inappropriately.

Discussion

Appellant complains that the evidence is factually insufficient to support his conviction under Clewis v. State and its progeny.  922 S.W.2d 126 (Tex. Crim. App. 1996).  The Court of Criminal Appeals overruled Clewis in its recent decision in Brooks v. State.  323 S.W.3d 893, 895 (Tex. Crim. App. 2010).  As a result, we now apply the Jackson v. Virginia, 443 U.S. 307, 320, 99 S. Ct. 2781, 2789 (1979) sufficiency standard of review to complaints styled as legal or factual sufficiency challenges concerning the elements of a criminal offense.  See Ervin v. State, 331 S.W.3d 49, 52–56 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (citing Brooks, 323 S.W.3d at 894–913). 

Under the Jackson standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational fact-finder could have found that each essential element of the charged offense was proven beyond a reasonable doubt.  See Jackson, 443 U.S. at 317, 319, 99 S. Ct. at 2788, 2789; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).  It is the function of the trier of fact to resolve any conflict of fact, to weigh any evidence, and to evaluate the credibility of any witnesses.  See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).  We therefore resolve any inconsistencies in the evidence in favor of the verdict and “defer to the jury’s credibility and weight determinations.” See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).  This deferential standard applies equally to circumstantial and direct evidence.  Laster, 275 S.W.3d at 517–18.  As the determiner of the credibility of the witnesses and the weight to be given to their testimony, the factfinder may choose to believe all, some, or none of the testimony presented.  See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).

Appellant contends that the only evidence in support of the verdict was the complainant’s testimony, which appellant argues “was somewhat vague as to what Appellant allegedly did.”  The complainant unequivocally testified that appellant inserted his finger in her vagina.[6]  The state’s medical expert and the nurse who examined the complainant both testified that the injuries sustained were consistent with the abuse she described. As the sole factfinder, the jury was entitled to believe the testimony of the complainant, the medical experts, and Royal’s testimony that he saw appellant touching the complainant, and to disbelieve appellant’s claims of innocence.[7]  Margraves, 34 S.W.3d at 919. From this evidence a rational trier of fact could have concluded, beyond a reasonable doubt, that appellant committed the offense of aggravated sexual assault of a child.  Therefore, we overrule appellant’s sole point of error.

Conclusion

We affirm the judgment of the trial court.

                                                                   Jim Sharp

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Sharp and Brown.

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

---

[1]           Tex. Penal Code Ann. § 22.021 (a)(1)(B) (West 2003).

[2]           Alycia is appellant’s biological daughter.

[3]           Yashica is appellant’s sister.

[4]           The complainant was eleven years old at the time of the incident.

[5]           The Harris County deputy who arrested appellant testified that he swabbed appellant’s hands for possible DNA evidence. The forensic DNA examiner who analyzed those swabs testified that all four of the swabs contained DNA from more than one individual and, although the complainant was excluded as a contributor on three of the four samples, the fourth sample was inconclusive.

[6]           The complainant’s testimony, standing alone, is sufficient to support appellant’s conviction.  Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (stating testimony of victim, standing alone, even if victim is a child, is sufficient to support conviction for sexual assault under Jackson’s legal sufficiency standard); see also Carty v. State, 178 S.W.3d 297, 303 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (same; applying pre-Brooks factual sufficiency standard).

[7]           Appellant testified that he had four prior felony convictions, including two convictions for forgery, one conviction for attempted possession of a prohibited substance in a correctional facility, and one conviction for theft from a person.  Tex. R. Evid. 609(a) (stating that one may impeach witness credibility with evidence of a conviction for felony or crime of moral turpitude).