Glover v. State
| Decision Date | 31 October 2002 |
| Docket Number | No. 06-00-00169-CR.,06-00-00169-CR. |
| Citation | 102 S.W.3d 754 |
| Parties | Troy Shonnard GLOVER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Ronnie Jo Cohee, Beaumont, for appellant.
Rodney D. Conerly, Assistant Criminal District Attorney, Wayln G. Thompson, Assistant District Attorney, Beaumont, for appellee.
Before GRANT, ROSS, and CORNELIUS,* JJ.
On June 5, 2000, Troy Shonnard Glover was convicted of sexual assault of a child pursuant to TEX. PEN.CODE ANN. § 22.011 (Vernon Supp.2002). The jury assessed punishment, enhanced by a previous felony conviction, at twelve years' imprisonment. In five points of error, Glover complains the evidence was both factually and legally insufficient to support his conviction. Glover further complains that hearsay testimony was erroneously admitted and that this amounted to a violation of his confrontation rights under the United States and Texas Constitutions.
The issue at trial was whether Glover, age twenty-six,1 had sexual relations with A.H., the fourteen-year-old complainant. A.H. filed a complaint with the Beaumont police on May 14, 1999, but was unavailable to testify when the case was tried.2 The issues in this appeal are centered primarily around the admission of hearsay statements of the complainant, A.H., as related in court by her mother, Diane.
In his first point of error, Glover asserts the evidence was legally insufficient to support his conviction. In reviewing a legal sufficiency challenge, we review all of 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 offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Williams v. State, 937 S.W.2d 479, 482-83 (Tex.Crim.App.1996).
A person commits the offense of sexual assault when he (1) intentionally or knowingly (2) causes the penetration of the anus or female sexual organ of a child by any means. TEX. PEN.CODE ANN § 22.011(a)(2)(A). A child means a person younger than seventeen years of age who is not the spouse of the actor. TEX. PEN. CODE ANN. § 22.011(c). Rather than alleging all statutory manners of committing the offense, the State only alleged that Glover intentionally and knowingly caused the penetration of the female sexual organ of A.H. by inserting his male sexual organ. The age (fourteen) and marital status (unmarried) of A.H. was uncontested and conclusively established at trial.
The State offered the following evidence of Glover's guilt. Ron Kyles, Sr. (A.H.'s uncle) ran Pleasure Island, a restaurant where Glover worked. Kyles, Sr. testified he overheard Glover admit that "he screwed the s___t out of [A.H.]," and that Glover would go to Mexico before he would go to jail. Ron Kyles, Jr. (A.H.'s cousin) also worked at Pleasure Island. He testified to what he termed an "attempted seduction" of A.H. by Glover. The flirtatious encounter included winks, smiles, touching, and games. He also testified (over objection) that A.H. had told him she had slept with Glover. Diane testified Glover admitted to her that he had picked up A.H. at one a.m. on May 15 from her father's house and taken her to his apartment. Paul Pirtle, a coworker of Glover, testified to a separate conversation with Glover wherein Glover admitted he thought A.H. was "hot," that he knew she was only fourteen, and that he had picked her up and had sex with her. Pirtle also related a second statement that Glover said he would "do whatever it took to ... stop from going back to jail" if his liaison with A.H. were discovered. Kandi Phillips, an ex-coworker of Glover, testified to a separate conversation during which Glover said he was facing statutory rape charges for having sex with A.H. When Phillips asked Glover if he had "slept with"3 A.H., he said yes.
Glover complains there was no direct evidence of penetration of the female sexual organ of the victim as alleged in the indictment. He argues this renders the evidence legally insufficient. It is not necessary for a conviction to rest on direct evidence. One witness providing circumstantial evidence of each element satisfies the State's burden with respect to legal sufficiency. The State offered several different out-of-court admissions made by Glover, indicating that he had engaged in the charged conduct.
The State also offered the hearsay testimony of Diane. Glover argues that this evidence is inadmissible and that without this critical evidence, the State's case is both factually and legally insufficient. While the admissibility of the complainedof hearsay is discussed at length below, we will include the contested evidence in our review. When addressing a challenge to the sufficiency of the evidence, even erroneously admitted evidence must be considered. Rodriguez v. State, 819 S.W.2d 871, 873 (Tex.Crim.App.1991). Diane testified that A.H. had admitted to two different sexual encounters with Glover and that they had "used latex" or a condom.
Viewing all of the evidence in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of sexual assault of a child beyond a reasonable doubt. Glover's first point of error is overruled.
In his second point of error, Glover asserts the evidence was factually insufficient to support his conviction. In reviewing a challenge to the factual sufficiency of the evidence, we view all the evidence without the prism of "in the light most favorable to the verdict." Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996). We determine whether a neutral view of all the evidence, both for and against the verdict, demonstrates that the proof of guilt is so obviously weak it undermines confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). When performing this review, we give due deference to the jury's assessment of the weight and credibility of the evidence. Id. at 20. We will find the evidence factually insufficient only where necessary to prevent manifest injustice. Id. If we find the evidence factually insufficient, we vacate the conviction and remand for a new trial. Jones, 944 S.W.2d at 648; Clewis v. State, 922 S.W.2d 126, 133-35 (Tex.Crim.App.1996).
The only testimonial evidence offered by Glover in his defense was that of Diane. He re-called her to the stand to testify regarding a possible boyfriend who A.H. may have had at school. Glover also introduced several notes written by A.H. to a classmate. A note dated January 15, 1999, and written by A.H. to a friend read, "I would tell you all about last night but all of these wandering eyes don't need 2 know all about my sex life...." A note by A.H. dated March 8, 1999, related how upset A.H. was about having to move away from a boy for whom she had strong feelings, while another (no date) read that she would do anything to be with him. The State introduced a separate note from April 15, 1999, wherein A.H. indicated she thought her parents were taking her to a doctor to "see if [she] had sex or something," but confided to her friend that she had not done so. A.H. also stated how strongly she wanted to see another boy from school. Glover argues that the letters show A.H. may have had relations with boys her own age and that to protect these boys, she fabricated Glover's involvement. The remainder and greater part of Glover's factual sufficiency argument centers on challenging the credibility of the witnesses who testified to Glover's various admissions.
Unless the record clearly reveals a different result is appropriate, an appellate court must defer to the jury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor that the jury is better situated to make. Johnson, 23 S.W.3d at 8. The same holds true for uncontradicted witness testimony where the credibility of the evidence is challenged by cross-examination. In this case, several witnesses testified to Glover's admissions of sexual congress with A.H. Each witness was cross-examined. Although other people were also present when the admissions were made, Glover did not call them to either refute or explain the context of prior witnesses' testimonies regarding the admissions. Possible relationships between boys at school and A.H., even if established, would not negate her contact with Glover. The case rests primarily on the credibility of the State's witnesses, combined with the jury's understanding of what the phrases "screwed the s___t out of," "had sex with," and "slept with" meant.
A neutral view of all the evidence, both for and against the verdict, demonstrates the proof of guilt was not so obviously weak it undermined confidence in the jury's determination. The proof of guilt was not greatly outweighed by contrary proof. The evidence was factually sufficient to support the conviction. Glover's second point of error is overruled.
In his third and fourth points of error, Glover complains of the admission of hearsay statements made by A.H. Over proper and timely objection of the defense, Diane was permitted to relate statements made by A.H. during a confrontation between the two. Glover contends that this testimony was hearsay, not within any exception, and that the trial court erred in admitting it.
Diane's testimony included the following: In May of 1999, A.H.'s parents were separated and living in different residences in Beaumont. At around one a.m. on May 15 (the early morning after Mother's Day), A.H. sneaked out of her father's...
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