Dalgleish v. State

• Decision Date: 21 March 1990
• Docket Number: No. 09-89-120,09-89-120
• Citation: 787 S.W.2d 531
• Parties: James Paul DALGLEISH, Appellant, v. The STATE of Texas, Appellee. CR.
• Court: Texas Court of Appeals

Page 531

787 S.W.2d 531

James Paul DALGLEISH, Appellant, v. The STATE of Texas, Appellee.

No. 09-89-120 CR.

Court of Appeals of Texas Beaumont.

March 21, 1990.

Rehearing Denied April 11, 1990.

Maurice D. Healy, Nacogdoches, for appellant.

Gerald Goodwin, Dist. Atty., Lufkin, for State.

OPINION

WALKER, Chief Justice.

This is an appeal from a judgment of conviction of the offense of Aggravated Sexual Assault of a Child. The defendant, James Paul Dalgleish, was tried before the 159th Judicial District Court of Angelina County, Honorable David Walker, Judge presiding, on October 24, 1988. Appellant waived trial by jury and was found guilty by the trial court. After a pre-sentence report was completed, appellant was sentenced on March 8, 1989 to fifteen (15) years confinement in the Department of Corrections. On March 21, 1989, the trial court entered a new judgment and on April 3, 1989, the defendant filed his motion for new trial. Appellant has duly perfected his appeal to this Court setting out seven (7) points of error.

Factually, appellant met and became friends with one G_____ L__ C_____ through C_____'s employment at a motorcycle dealership. Mr. C_____ was married to L____ C_____ and they had an adopted daughter, K____. K____ was thirteen years old. The C_____s began to have marital problems and separated in late 1986. By that time, appellant was involved in an affair with Mrs. C_____ as evidenced by her move into appellant's apartment from approximately March or April, 1987 until September of that year at which time Mrs. C_____ moved away from appellant into her own apartment with K____ in Lufkin, Texas. Mrs. C_____ continued to see appellant.

Appellant, who was legally disabled, did not have a job and would frequently be at Mrs. C_____'s apartment alone with K____ while her mother was at work. The child testified at the time of trial that she and appellant engaged in sexual intercourse on several occasions and that on or about May 10, 1988, K____ told her parents about the relationship. Mrs. C_____ took K____ to a local hospital to be examined for injury and possible pregnancy. K____ testified as to having intercourse with appellant on May 10, 1988. Appellant testified at the time of trial and denied having intercourse with the minor child. Appellant was indicted for Aggravated Sexual Assault under Sec. 22.021, PEN.CODE (Vernon's Supp.1989).

Appellant's first two points of error contend that the evidence was insufficient to sustain the trial court's finding of guilt. Appellant refers primarily to bias against him by K____ C_____, and appellant's medical expert opinion testimony that K____ had not engaged in sexual intercourse on the date alleged in the indictment. We disagree with appellant's position.

The proper standard of review, where the sufficiency of the evidence to support the conviction is questioned, is found in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979): "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." This rule has been adopted in Texas. Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1983); Thompson v. State, 697 S.W.2d 413 (Tex.Crim.App.1985). This rule has recently again been set forth in a case out of this Court, Terrance Paul Lewis v. State, (unpublished opinion, No. 09-89-170 CR--Beaumont, 1990) which cited Moreno v. State, 755 S.W.2d 866 (Tex.Crim.App.1988). In the case before us, K____ C_____'s testimony was sufficient to establish the statutory elements. She plainly described appellant's repeated episodes of sexual intercourse with her. Appellant argues that her version is not worthy of belief. In a non jury trial, however, the trial judge is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. He is authorized to believe or not believe any or all testimony of witnesses for either the State or the defendant. Mattias v. State, 731 S.W.2d 936, 939 (Tex.Crim.App.1987). This principle also applies to the testimony of the victim of a sexual assault case. Turner v. State, 732 S.W.2d 91, 92 (Tex.App.--Beaumont 1987, no pet.). The fact that the judge specifically stated that he believed the victim's testimony, demonstrates that he properly exercised his exclusive role as the finder of fact. Langford v. State, 578 S.W.2d 737, 739 (Tex.Crim.App.1979) (probation revocation hearing).

Further, in other cases, courts have rejected similar contentions that the testimony of a child victim in a sexual assault case lack truthfulness and credibility. Hohn v. State, 538 S.W.2d 619, 621 (Tex.Crim.App.1976); Rhodes v. State, 624 S.W.2d 770, 771 (Tex.App.--Houston [14th Dist.] 1981, no pet.). Appellant contends that the trial judge treated the case as a swearing match and, as a result, "ignored relevant and competent evidence in the record...." Again, on review, we are required to view the evidence in the light most favorable to the verdict. The victim testified to all the elements of the offense charged. The victim's mother testified as to when the victim told her about what appellant had done, and to the fact that victim and appellant were left alone on numerous occasion while mom was at work. The only other witnesses that testified during the trial were Mr. Bob Ford, a Department of Human Services worker, Dr. Alfred Friday (appellant's expert witness whose testimony was used in an attempt to impeach the medical examination done on the victim) and the appellant himself, who emphatically denied all of the allegations in their entirety.

Distasteful though it may be, we feel that some more detailed statement of the facts before the trial court should be brought into perspective, especially in view of the credibility questions. The evidence reveals that the minor child had been molested by her adopted father; her adopted mother became involved with appellant, who in turn was alleged to have had sexual intercourse with the child. Both Mr. C_____ and appellant continued in some degree in competition for Mrs. C_____'s affection. K____ found herself in the midst of these perhaps bizarre and unequivocally emotional and perhaps occasionally, unbearable circumstances. From this evidence, it is understandable that K____ had some bias in favor of her father with whom she apparently had some semblance of a family relationship, and against appellant, who was at least in part responsible for the C_____'s marital discord and separation. The record reflects the victim's bias against appellant. However, there was evidence other than K____'s testimony which corroborates appellant's guilt. Defendant's exhibit one, on which appellant heavily relied, indicates that K____ was "non virginal", and that the hymen was not present. The trial court could have, however, given great weight to the fact that this supported K____'s testimony of appellant's sexual attack upon her. The trial court could have considered appellant's own denial of sexual activity with K____ far less than convincing. Appellant admitted to being alone with K____ in Mrs. C_____'s apartment "give or take a dozen times". Appellant said that he never had a comfortable relationship with K____, yet it was comfortable enough that he would discuss sex with her. Appellant would not explain why, if K____ never like him (as appellant testified), she waited for five and one half months before making accusations against him or why she did not name him as the perpetrator at the hospital.

Appellant urges this Court to find the evidence insufficient because the State did not disprove the so called exculpatory aspects of his alleged admission to Mrs. C_____ that he had masturbated in front of K____, but had not had intercourse with her. In support of that position, appellant cites the "voucher rule" of Palafox v. State, 608 S.W.2d 177 (Tex.Crim.App.1979) which binds the State to exculpatory testimony of its witnesses elicited on direct examination. Rule 607 of the TEX.R. OF CRIM.EVID. (effective September 11, 1986) abrogates this requirement; the Palafox rule is no longer a part of Texas law. Nation v. State, 762 S.W.2d 290, 293 (Tex.App.--Beaumont 1988 no pet.); Gale v. State, 747 S.W.2d 564, 566 (Tex.App.--Fort Worth 1988, no pet.); Guerra v. State, 760 S.W.2d 681, 696 (Tex.App.--Corpus Christi 1988, no pet.); Downing v. State, 761 S.W.2d 881, 883 (Tex.App.--Fort Worth 1988, pet. ref'd). The case of County v. State, --- S.W.2d ---- (# 69,793, Tex.Crim.App.1989) also cited by the appellant, did not resurrect the Palafox voucher rule; it discusses the application of same to a case tried in 1985 before the Rules of Evidence went into effect. Points of error one and two are overruled.

Appellant's third point of error accuses the State of withholding evidence relating to K____'s credibility as a witness. This point of error addresses information contained in a presentence investigation report, (PSI), ordered by the trial court after the defendant had been found guilty. PSI's are authorized by Art. 37.07, sec. 3(d) and 42.12, sec. 4 of the TEX.CODE OF CRIM.PROC. Appellant contends that the factual basis for this point is contained in the PSI. Appellant does not explain how or what evidence the district attorney withheld, and makes only this conclusory accusation but does not point out anywhere in the record where this point is supported. We overrule appellant's point of error number three and rely upon Rule 52(a) of the TEX.R.APP.P. which states:

"(a) General Rule. In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection or motion. If the...