Reagor v. State

LAGARDE, Justice,

dissenting.

I respectfully dissent. When reviewing the sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found each element of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234, 238 (Tex.Crim.App.1989). The standard applies equally to direct and circumstantial evidence cases. See Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984). We test every circumstantial evidence case by its own facts to determine the sufficiency of the evidence to support the conviction. Freeman v. State, 654 S.W.2d 450, 454 (Tex.Crim.App.1983). Proof amounting to only a strong suspicion or mere probability is insufficient. Id. However, the standard does not require the State to prove to a moral certainty that the circumstances presented actually exclude every hypothesis that another person may have committed the criminal act. It must only exclude every hypothesis raised by the evidence that would tend to exculpate the defendant. It is enough that the cumulative force of all the incriminating circumstances warrants a conclusion of guilt. Brandley v. State, 691 S.W.2d 699, 703 (Tex.Crim.App.1985). The jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given their testimony; the jury is entitled to accept one version of the facts and to reject another. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1981). Conflicting evidence is not enough to warrant overturning a jury verdict. Thomas v. State, 458 S.W.2d 470, 473 (Tex.Crim.App.1970).

Although the majority correctly stated the above standard in the abstract, they do not apply that standard. Rather, in their application of the standard to the facts, they view the evidence in the light least favorable, not most favorable, to the prosecution. A fair and complete summary of the evidence considered by the jury follows.

At the time of this offense, the three-year-old victim¹ resided in Dallas County with her parents and a five-year-old brother. Her mother did not work outside the home and was her children’s primary caretaker. The mother spent most of her day with her children, “who [seldom] left her side.” Because of their young ages, she did not allow them to just go off with other children to play. They only played with children of two other neighbors, and they did not go inside those neighbors’ houses. They did not play with any other children. They did not go to church school, pre-kin-dergarten, or anything else. Although there were teenage boys who played in the neighborhood, there were none in the immediate area. On the occasions when complainant’s mother could not supervise her children, she left them in the care of her sister-in-law or her grandmother. On the few occasions when the victim stayed with her grandmother, she was sometimes around her uncle George, who lived with her grandmother, and a teenage cousin, Curtis. The children were not often left with the grandmother because she was old. George was “always at work” and never babysat the children. Neither did Curtis. The victim was around George and Curtis only when her mother was there.

Gary Reagor, the victim’s maternal uncle, frequently visited his sister, the victim’s mother. He was a twenty-six-year-old single man who “probably dated numerous women.” On June 26, 1989, Reagor visited the victim’s family. Reagor spent the night there because he had had “bad luck” and his sister was the only person in the family who would have anything to do with him. He had no other place to stay. He slept on a pallet on the floor of the bedroom that complainant shared with her five-year-old brother. The room contained one bed, which the children shared. The children’s room joined their parents’ bedroom by way of a bathroom, with doors into each bedroom. On the night of the offense, the door to the parents’ room was closed, but the children’s door to the bathroom was open. The other door in the children’s room, which opened into the kitchen, was removed from its hinges, leaving just an opening. There was no way the parents could have heard or seen what Reagor was doing unless they woke up, walked around through the kitchen, and went in the children’s room. As usual, on that night, the victim wore only panties and a t-shirt as sleepwear. Both children are sound sleepers. “Drop a bomb, they wouldn’t wake up.” Neither complainant nor her brother gave any indication that Reagor or anyone else had sexually contacted her. Reagor may have stayed there after June 26, but his sister does not recall.

Three to seven days after Reagor’s June 26 visit, complainant’s mother noticed that complainant had a “slight discharge and was itching.” Thinking that the discharge might be a yeast infection, the mother waited until July 19 before she took complainant to Dr. Melinda Uhrich at Parkland Hospital. She examined the complainant and gave her mother a cream in the event it was a yeast infection.

When Dr. Uhrich received complainant’s positive lab result for Neisseria gonorrhea, she called a social worker and reported it to protective services. On July 27, a social worker visited complainant’s parents at their home, where she informed them that complainant had Neisseria gonorrhea. Her father was devastated. He and his wife sat up the majority of that night discussing it, “trying to figure out how, who, when, and where, the circumstances.” They determined that there were only four people with whom the victim could have had sexual contact. Upon the social worker’s suggestion, in an attempt to discover how complainant got gonorrhea, the complainant’s father, her paternal grandfather, a paternal uncle, and Reagor went to a clinic to be tested for gonorrhea the next day. Reagor agreed to be tested, but was not told that the test was for a venereal disease. After-wards, complainant’s father asked Reagor the result of his (Reagor’s) test. Reagor responded that it had come back positive for something, but not for venereal disease. However, when complainant’s father called the clinic to verify the results, he learned that Reagor had actually tested positive for Neisseria gonorrhea. Reagor admitted to his sister, the victim’s mother, that he had gonorrhea. However, he denied to her that he had molested the complainant. Complainant’s father and the other men tested negative. The same night complainant’s parents learned of Reagor’s positive test result, they called the police. The police came to their house and took a report.

In addition to the facts set out above, complainant’s parents testified at Reagor’s trial about a previous suspicion they had involving Reagor and complainant. When complainant was still in diapers,² her parents hired Reagor to baby-sit their children. Complainant’s father testified that, when he and his wife returned home after a three-hour absence, there was a “white and dried up” substance on the bed. Both parents testified that complainant’s vaginal area “seemed to be widening or open. It looked wet. She didn’t look right.” In retrospect, the father thought that the substance was sperm. Complainant’s father testified that on the earlier occasion he was suspicious of Reagor and talked to his wife about the possibility that the substance was sperm. His wife thought that it might have been possible, but she adamantly refused to believe it. Her only confrontation with Reagor was to tell him to change complainant’s diapers more often. However, after the June 26 incident, both parents totally believed that Reagor was guilty. On cross-examination by defense counsel, the father testified:

A. What am I trying to tell the jury that happened?

Q. Uh-huh.

A. I’m not trying to tell the jury anything that happened, that the facts kind of speak for themself [sic]. You’d have to be blind not to realize it.

Q. Well, no, I’m asking you what you say or tell this jury what you think happened in that home.

A. Okay. What happened in that home was, late that night everybody went to sleep, [the children] included. Gary took advantage of [complainant] while everybody was asleep.

I don’t think [complainant] really remembers what happened because of the fact that she was asleep. I don’t think that there was any penetration, but I do think that he, you know, rubbed himself up against her enough to create ejaculation, and that’s what happened.

In response to a question from defense counsel suggesting that he did not like Reagor, the father testified:

A. I think a lot of Gary. I used to. I don’t have any bad feelings personally against Gary. He’s just like, you know, anybody else. I try to treat people like I like to be treated and, you know, that’s just the way I am.

I tried to help him where I could. I don’t have any hard feelings against Gary. I think I let him off leniently when I found him. But I’ve got faith in the processes of law. I feel like justice will be done.

Dr. Uhrich testified that it would be within a reasonable incubation period for complainant to have contracted gonorrhea on June 26 and not have manifested gonorrhea symptoms until July 19. The nurse from the sexually transmitted disease clinic testified that she had sixteen years experience working with sexually transmitted diseases. Based on that experience, she testified that two to fourteen days is a reasonable time for gonorrhea symptoms to become recognizable.

Testimony concerning transmission of gonorrhea was conflicting between the pediatrician, Dr. Uhrich, and the nurse from the sexually transmitted disease clinic. The pediatrician testified that, although it was “not impossible” to transmit gonorrhea by hand contact, provided there was a “good dose of gonorrhea germs” on the hand, a female child usually contracts gonorrhea when a male touches the tip of his infected penis against the child’s vagina. The doctor found no evidence of penetration on complainant; however, she testified that no penetration or ejaculation is required to transmit gonorrhea. She explained that the bacteria of gonorrhea are found in the urethra and on the skin of the penis, not in the ejacula. The nurse testified that Reagor did not have gonorrhea of the mouth and that his gonorrhea was asymptomatic, meaning that he might not have been aware that he had the disease. The nurse testified that, although gonorrhea was a common disease, asymptomatic gonorrhea could only be transmitted by penis-to-vagina contact. She testified that three-year-old children do not walk around with gonococcal vaginitis without sexual exposure. The nurse personally saw Rea-gor and took his medical history. He told her that he had two sexual partners. The pediatrician did not test Reagor, did not know who did, and had not seen Reagor’s test results. She did not know what kind of gonorrhea Reagor had. She testified that she could not say when Reagor got gonorrhea. Her medical background was in pediatrics, and she had not dealt with adult males with gonorrhea in a long time.

The father testified that the complainant would not be able to grasp the difference between the truth and a lie about something of this magnitude. She did not testify at trial. Reagor did not testify at trial.

In applying the sufficiency standard of review to the facts, I, unlike the majority, focus on all the evidence, admissible and inadmissible, that was before the jury. Deason v. State, 786 S.W.2d 711, 716 (Tex.Crim.App.1990). I view that evidence in the light most favorable to the verdict. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Butler, 769 S.W.2d at 238. Evidence not before the jury is irrelevant to a sufficiency inquiry. Girard v. State, 631 S.W.2d 162, 163 (Tex.Crim.App. [Panel Op.] 1982). The possibility of better evidence does not imply that the extant evidence is insufficient. US. v. Kington, 875 F.2d 1091, 1102-03, reh’g denied, 878 F.2d 815 (5th Cir.1989).

Although the State initially alleged both penetration and sexual contact, it abandoned the penetration means, leaving only the sexual contact theory to be proven. The elements the State must have proved are that: (1) Reagor (2) intentionally or knowingly (3) caused the sexual organ of a child to contact the mouth, anus, or sexual organ of another person, including Reagor.

The following facts are undisputed: At the time of the offense, the complainant was a three-year-old child. She contracted Neisseria gonorrhea. Reagor slept in the same room with her at a time within the incubation period. Reagor tested positive for the identical kind of gonorrhea as complainant, Neisseria. Her parents determined that only four men would have had access to sexual contact with complainant during the relevant time period. Those men were all tested and none, except Rea-gor, tested positive for gonorrhea; Reagor was asymptomatic. Reagor volunteered to take a test, but was not told that it was a venereal disease test. Reagor lied to complainant’s father when he told him that he did not test positive for venereal disease. Prior to June 26, Reagor frequently visited his sister. After Reagor tested positive, complainant’s father did not see Reagor until four months later. On that occasion, it was a chance meeting. The father was coming up the exit ramp to the expressway as Reagor was going on. The father immediately stopped, backed up, picked up Rea-gor, went and called the police, and had them come pick up Reagor. Complainant’s parents were suspicious of Reagor’s actions toward complainant on an earlier occasion because of the way her genitalia looked after he had baby-sat her. Penetration is not required to transmit gonorrhea. Reagor did not have gonorrhea of the mouth.

It was factually disputed whether gonorrhea must be transmitted exclusively by contact between penis and vagina or whether it could be transmitted by hand-to-vagina contact. The jury resolved that issue in favor of the former. It was also factually disputed whether the complainant’s parents called the police the night they learned of Reagor’s positive test result or whether they called the police “on or about August 4, 1989.” The jury’s resolution of this dispute is, however, not essential to its guilty verdict.

THE MAJORITY’S VIEW

a. Most-Likely Assailant

The majority cite Coe v. State, 683 5.W.2d 431, 438 (Tex.Crim.App.1984), in support of its holding of insufficiency. Coe is not applicable. It is not a sufficiency case. Furthermore, the conviction in Coe was affirmed. They cite Williams v. State, 692 S.W.2d 671, 676 (Tex.Crim.App.1984). Williams is inapplicable. It is not a sufficiency case. It, like Coe, was affirmed.

b. Presumption of Innocence

The majority cite Ardovina v. State, 143 Tex.Crim. 43, 156 S.W.2d 983 (1941), and Perkins v. State, 32 Tex. 109 (1869), for the proposition that a defendant is presumed innocent. I do not disagree with the abstract principle stated in these cases. I certainly agree that Reagor was presumed innocent until the jury found him guilty beyond a reasonable doubt. I further agree that each element of the offense must be proved beyond a reasonable doubt. Tex.Code CRIm.PROC.Ann. art. 38.03 (Vernon Supp.1991). In reviewing the evidence on appeal to determine whether it is sufficient to rebut that presumption, however, we must view the evidence in the light most favorable to the prosecution in determining whether the evidence produced was sufficient to persuade a rational factfinder of Reagor’s guilt. We are not to sit as a thirteenth juror. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988).

c. Majority’s Analysis Examined

This Court is required to view the evidence presented to the jury in the light most favorable to the verdict. The majority, nevertheless, focus their review on evidence that was not presented. They reason that the evidence is insufficient because: there was no outcry; the complainant did not testify; the complainant did not remember the assault; and the family did not notice anything unusual on or about June 26, 1989. A rational factfinder could reason that those omissions were insignificant for the following reasons:

(a) the State was only required to prove contact, a touching — not penetration; (b) the complainant was a sound sleeper — “drop a bomb and [she] wouldn’t wake up” — and slept through the incident; (c) the child was three years old; (d) her father testified that she would not know the difference between a truth and a lie on something of this magnitude; (e) she was unaware of the event; and (f) she was only four years old at the time of trial.

The majority further reason that the evidence was insufficient because there were: no physical signs of contact or penetration; no bruising, injuries, or sperm either on the complainant or the sheets; and the complainant’s clothing was not ripped or disheveled. A rational factfinder could reason that those omissions were of no moment because:

(a) the State was only required to prove contact, not penetration; (b) neither ejaculation nor penetration was required to transmit gonorrhea; (c) complainant was only wearing panties, and they could easily have been partially removed or removed completely and replaced.

The majority also rely on the fact that there are thousands of men who have gonorrhea; that it is possible that someone else with gonorrhea had access to the complainant; and, further, that there is no evidence that Reagor had gonorrhea on June 26, 1989. A rational factfinder could reason that:

(a) there is no evidence that anyone else with access actually had gonorrhea either on that date or within a reasonable incubation period of that date; (b) in light of the mother’s testimony, that no one else even had access; (c) Reagor tested positive for asymptomatic gonorrhea on July 19; and (d) one can reasonably infer that Reagor was infected on June 26, in light of the incubation period.

The majority further state as a reason for their holding that Reagor’s actions were consistent with innocence. A rational factfinder could reason that Reagor’s actions were inconsistent with innocence because he:

(a) was asymptomatic and may have been unaware that he had gonorrhea; (b) he took the exam for a venereal disease unwittingly; (c) he took the exam for venereal disease because he was unaware that he had gonorrhea, thus he had no fear of testing positive; (d) at that time, he was unaware that complainant had gonorrhea; (e) he lied to complainant’s father; (f) complainant’s father “got” Reagor’s test information from the public health clinic, not that Reagor willingly gave it to him,³ or that Reagor felt a refusal would be suspicious; and (g) complainant’s family did not see Reagor for four months after he tested positive (he had visited frequently before) and only then it was by chance.

The majority’s view that someone else possibly could have had gonorrhea and transmitted it to the complainant is not reasonable on the evidence presented. Further, this view is inconsistent with the role of this Court in reviewing sufficiency of the evidence. As the court stated in Girard:

Our task is not to ask whether we believe that the evidence at trial established guilt beyond a reasonable doubt; it is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App.1981). In circumstantial evidence cases, this test is translated into the requirement that the evidence exclude every reasonable hypothesis other than guilt. Id. n. 5.

Girard, 631 S.W.2d at 163. Here, as in Girard, Reagor’s argument that it is possible that someone else infected with gonorrhea transmitted it to the complainant is one for the jury. They apparently rejected that possibility, and a rational trier of the facts would have been justified in doing so in light of all the testimony. As the court in Girard said, “[t]he same is true of the inconsistencies, which are really suggestions that certain incriminating evidence was not found, rather than evidence which actually was inconsistent with guilt.” Girard, 631 S.W.2d at 163-64. Further, the court in Girard teaches that such suggestions are not “reasonable hypotheses other than guilt” because

the test of circumstantial evidence does not permit the alteration of the evidence to fit the hypothesis; obviously, there always will be a hypothesis of innocence if inculpatory evidence ... can be rejected. The correct procedure involves accepting the inculpatory circumstances, ... and then asking if there is a reasonable hypothesis other than guilt which would also account for such circumstances.

Girard, 631 S.W.2d at 164.

Viewing the evidence in the light most favorable to the verdict, as I must, I conclude that the evidence is sufficient to allow a rational factfinder to conclude that there is no reasonable hypothesis raised by the evidence other than Reagor’s guilt, and to find Reagor guilty on each element of the offense beyond a reasonable doubt.

I would affirm.

1 . She was four years old at the time of trial.

2 . The testimony is conflicting as to complainant’s age at that time. The father testified that she was two and the mother testified that she was one.

3 . The record reflects the following relevant testimony by the complainant’s father on direct:

Q. And where did you go take the test?

A. At the public health clinic on Amelia, close to Harry Hines.

Q. And after you took the tests, what kind of information did you receive from the health clinic to find out about your test results?

Q. (By prosecutor) My question is: How were you going to find out about your results? A. We received a number and written — written name and number to the tests that was— you know, each individual’s tests. There was a number and your name with the number that came back, to give you the proper — you know, the outcome of the tests.

Q. Did you receive the name and number of people other than yourself?

A. Yes. I got everybody’s name and number.

Q. Did they voluntarily give you their name and number?

A. Yes.

Q. Let me ask you this: Who all went to take the tests with you?

A. My father, my brother, Gary Reagor and myself.

Q. Why did you take Gary, your father and your brother with you?

A. Because those were the people that [complainant] came in contact with, and would have had access to doing something like this.