Grimes v. State
| Decision Date | 29 January 2004 |
| Docket Number | No. 01-02-00819-CR.,No. 01-02-00818-CR.,No. 01-02-00817-CR.,01-02-00817-CR.,01-02-00818-CR.,01-02-00819-CR. |
| Citation | 135 S.W.3d 803 |
| Parties | Keith GRIMES, Appellant v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
L.T. "Butch" Bradt, The Teltschik Law Firm, Houston, TX, for Appellant.
Dan McCrory, Assistant District Attorney, William J. Delmore, III, Chief Prosecutor, Appellate Division, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, TX, for Appellee.
Panel consists of Justices ALCALA, HANKS, and HEDGES.*
In three separate indictments, appellant Keith Grimes was charged with the felony offenses of indecency with a child in cause number 873295 for touching the genitals of the child on or about February 6, 2001, aggravated sexual assault of a child in cause number 884017 for causing his sexual organ to penetrate the child's sexual organ on or about February 6, 2001, and aggravated sexual assault of a child in cause number 889126 for causing the child's sexual organ to contact his sexual organ on or about January 15, 2001. Appellant pleaded not guilty to a single jury who convicted him of all offenses alleged and sentenced him to two years' confinement for indecency with a child, fifteen years' confinement for the aggravated sexual assault of a child by penetration of the child's sexual organ, and five years' confinement for the aggravated sexual assault of a child by contacting the child's sexual organ with his sexual organ. The trial court ordered that the sentences run cumulatively. We affirm.
In fifteen issues, appellant complains (A) that the evidence is legally and factually insufficient (issues 5 and 12), (B) that affidavits and/or testimony offered by various witnesses concerning the DNA evidence and the credentials of the State's chief medical witness were perjurious (issues 1-4, 6, 13, and 15), (C) that the trial court abused its discretion in determining that appellant had forfeited his pretrial bond and by allowing evidence of the forfeiture to be admitted at trial (issue 7), (D) that the trial court abused its discretion in admitting evidence of appellant's October 1, 2001 suicide attempt (issue 8), (E) that the State failed to produce photographs and videotapes (issue 9), (F) that a statement appellant made to a Houston Police Department (HPD) Officer was admitted in violation of his Fifth Amendment rights (issue 10), (G) that appellant was denied his right to a fair and impartial judge (issue 11), and (H) that the court erred in admitting and excluding certain evidence (issue 14).1
Appellant and his then 13-year-old biological daughter (the complainant) began an incestuous relationship in August of 2000. The complainant's mother, who took medication for Parkinson's Disease that often made her drowsy, regularly fell asleep on a couch in the family living room.
Appellant and the complainant began inappropriately touching one another, approximately two times per week, while lying on the couch in the family living room, usually while the complainant's mother was asleep on the other couch. The sexual relationship quickly escalated. The complainant regularly entered appellant's bedroom to join her father in bed in the morning after her mother left for work.
At trial, she testified regarding several sexual encounters with her father which occurred on the first, second, and sixth of February, 2001. Following the February 6, 2001 encounter, the complainant informed her school counselor that she might be pregnant, that her father was responsible for the suspected pregnancy, and that the incident giving rise to her fear had occurred that morning after her mother left for work. The counselor took the complainant to the authorities, who began an investigation of the complainant's allegations.
In his fifth and twelfth issues, appellant contends that the evidence is legally and factually insufficient to support his convictions in each of the three offenses. When conducting a legal-sufficiency review, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim. App.2000); Howley v. State, 943 S.W.2d 152, 155 (Tex.App.-Houston [1st Dist.] 1997, no pet.). Although a legal-sufficiency analysis entails a consideration of all evidence presented at trial, we may neither re-weigh the evidence nor substitute our judgment for the jury's. King, 29 S.W.3d at 562. The jury, as the trier of fact, is the sole judge of the credibility of the witnesses. Obigbo v. State, 6 S.W.3d 299, 304 (Tex.App.-Dallas 1999, pet. ref'd).
In a factual-sufficiency review, we take a neutral view of the evidence, both for and against the finding, to determine (1) if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or (2) if the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. King, 29 S.W.3d at 563. In our review, we must consider the most important evidence that the appellant claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003). It is within the exclusive purview of the jury to determine the credibility of witnesses and the weight to be given to their testimony. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim. App.2000). The jury's determination may be reversed only upon a finding that a manifest injustice has occurred. King, 29 S.W.3d at 563.
In cause number 873295, appellant was charged with committing the offense of indecency with a child by touching the genitals of the complainant, a person younger than seventeen years of age, on or about February 6, 2001, with intent to arouse his sexual desire. In cause number 884017, appellant was charged with committing the offense of aggravated sexual assault of a child by placing his sexual organ inside the sexual organ of the complainant, a person younger than fourteen years of age, on or about February 6, 2001. In cause number 889126, appellant was charged with committing the offense of aggravated sexual assault of a child by causing his sexual organ to contact the sexual organ of the complainant, a person younger than fourteen years of age, on or about January 15, 2001.
The complainant testified that her sexual relationship with appellant began in August of 2000, shortly after she reached thirteen years of age. On the morning of February 6, 2001, the complainant entered her parent's bedroom, and climbed into bed with appellant, who was naked. After climbing into bed with her father, the two engaged in "vaginal sex." The two engaged in sexual intercourse "[p]robably three times in total" during the course of their relationship. The prosecutor asked whether the complainant was referring to vaginal sex or whether she was referring to appellant rubbing his sexual organ on the outside of her sexual organ, and the complainant responded: "I am talking about penetration." On cross-examination, defense counsel asked the complainant: "[d]id your father ever place his sexual organ in your female organ?" The complainant responded affirmatively, and testified it occurred on February 6, 2001. On redirect, the complainant testified that although she was wearing shorts and panties during the February 6, 2001 sexual intercourse, she recalled that her garments were pushed aside during the incident.
The complainant also testified that appellant contacted her sexual organ with his sexual organ on the first and second days of February, 2002, but had attempted to make her touch his sexual organ prior to that. When defense counsel asked whether the contact was inadvertent, the complainant responded that the contact was "deliberate."
Dr. Margaret McNeese, Medical Director for the Children's Assessment Center in Houston (CAC), testified that the complainant came to the CAC on February 6, 2001. She interviewed and physically examined the complainant. During the interview, McNeese asked the complainant whether appellant placed his sexual organ in her sexual organ, she responded "maybe." McNeese testified that any inaccurate or incomplete rendition of the complainant's account of what transpired is explained by the fact that an adolescent child typically minimizes or under-reports what they endure because of the shame they have, and their fear of testifying in court. When asked whether her examination revealed "clear definitive evidence of penetrating trauma" McNeese responded affirmatively, and testified that the most likely cause of the injuries she observed during the physical examination was from penile penetration. Dr. Girardet, Dr. Parks, and Dr. Lahoti reviewed Dr. McNeese's findings, and all agreed that the complainant suffered blunt penetrating trauma.2 Both Dr. Parks and Dr. Lahoti testified at trial, and their testimony sub-stantiated Dr. McNeese's testimony and conclusions.
While at the CAC on February 6, 2001, the complainant's panties were preserved for sampling. Audrey Timms, a forensic biologist employed by HPD's crime lab, testified that he tested samples from the complainant's panties for acid phosphatase and for the protein P-30. Both tests returned positive results. Timms testified that he was not aware of any substance that would cause a false positive for both tests, and therefore concluded that semen was present on the complainant's panties. Appellant's expert substantiated the conclusions reached by Bolding and Timms. Appellant's expert testified that, like Bolding and Timms, her laboratory would also conclude that seminal fluid was present in a sample if, upon analysis, the results of both the AP Test and P-30 Test were positive, even if no evidence of sperm could be located upon microscopic examination.
After moving to Kansas, the complainant became the patient of ...
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