In the Matter of R.A.

• Decision Date: 21 October 2009
• Docket Number: No. 08–07–00101–CV.,08–07–00101–CV.
• Citation: 346 S.W.3d 691
• Parties: In the Matter of R.A., a Juvenile.
• Court: Texas Court of Appeals

346 S.W.3d 691

In the Matter of R.A., a Juvenile.

No. 08–07–00101–CV.

Court of Appeals of Texas, El Paso.

Oct. 21, 2009.

Angela J. Moore, Chief Public Defender, San Antonio, TX, for Appellant.Linda Molina, District Attorney Office, Juvenile Div., San Antonio, TX, for Appellee.Before CHEW, C.J., McCLURE, and CARR, JJ.

OPINION

DAVID WELLINGTON CHEW, Chief Justice.

This is an appeal from a conviction for aggravated sexual assault and indecency with a child. Appellant argues on appeal that the evidence was legally and factually insufficient to support the conviction. Appellant also argues that his constitutional right to be free from double jeopardy was violated by the filing of the present case. We affirm.

C.K., the ten-year-old complainant, lived with her grandmother Ellen Cross. In March 2005, she spent spring break at her mother Jennifer Armstrong's house along with Ms. Armstrong's husband, Rodney Armstrong, and his five children. Appellant is C.K.'s fourteen-year-old stepbrother.

Ms. Cross testified that in April 2005, C.K. made an outcry. C.K. told Ms. Cross that on March 15, 2005, Appellant came into the livingroom where C.K. was sleeping and got on top of her in the middle of the night. Appellant told C.K. he was going to give her a massage. He then touched C.K.'s genital area under her shorts. He opened C.K.'s legs, spread them back, and pulled her shorts to the side. C.K. testified that Appellant put his “middle part” in her “middle part.” At trial, C.K. demonstrated what a “middle part” was and demonstrated the motion Appellant made during the incident. C.K.'s demonstration and explanations indicated that Appellant had inserted his penis into her vagina during the assault. C.K. tried to escape but Appellant held her down on the couch.

After the assault, Appellant got a washrag and cleaned C.K.'s genital area. C.K. did not yell during the attack because her mother had told her not to yell in the house, and C.K. feared getting her stepbrother in trouble. The next morning, C.K. noticed blood on her underwear. She told her mother about the bleeding, but did not describe the incident with Appellant, again because she was afraid Appellant would get in trouble.

Dr. Nancy Kellogg, an abuse and neglect specialist, examined C.K. on May 12, 2005. C.K. told Dr. Kellogg about the incident with Appellant. Dr. Kellogg testified that C.K. was not yet sexually developed, and that the bleeding could not have been attributed to a menstrual cycle. Although C.K. showed no physical signs of the assault at the time Dr. Kellogg examined her, the doctor noted that more than two months had passed since the incident, and any injuries may have healed. Dr. Kellogg concluded that C.K. had been sexually abused based on the history of bleeding and C.K.'s description of the incident.

Appellant was charged with aggravated sexual assault and indecency with a child on June 28, 2006. A bench trial was held in the 289th Judicial District Court, Bexar County, with the Honorable Carmen Kelsey presiding. The court found the charges to be true and held disposition hearings on December 19, 2006, and January 4, 2007. At the conclusion of the hearings, the trial court sentenced Appellant to probation until his eighteenth birthday and released him to his father's custody.

In Issues One through Four, Appellant challenges the legal and factual sufficiency of the evidence, arguing that the State failed to establish that Appellant committed the alleged offenses beyond a reasonable doubt. Specifically, Appellant asserts that C.K.'s history of behavioral issues, including hallucinations, caused her story to be so questionable as to be unbelievable. Furthermore, Appellant argues that C.K.'s tendency to react to various situations with anger further undermines her testimony. Moreover, Appellant argues the fact the alleged offenses were committed in a small house, but went unnoticed by the six people residing there raises further questions regarding C.K.'s allegations.

Although juvenile appeals are categorized as civil cases, when reviewing challenges to the sufficiency of the evidence supporting a finding that a juvenile engaged in delinquent conduct, appellate courts utilize the same standards applicable in criminal appeals. See In the Matter of M.D.T., 153 S.W.3d 285, 287 (Tex.App.-El Paso 2004, no pet.). When reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788–89, 61 L.Ed.2d 560 (1979); Burden v. State, 55 S.W.3d 608, 612 (Tex.Crim.App.2001). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992). Instead, our duty is to determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Adelman, 828 S.W.2d at 421–22. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991).

In a factual sufficiency review, we consider all the evidence in a neutral light. Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App.2008), citing Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.2007). Evidence is factually insufficient if: (1) the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust; or (2) the evidence supporting the verdict is outweighed by the great weight and preponderance of contrary evidence, rendering the verdict clearly wrong and manifestly unjust. Id. A new trial will only be granted when the reviewing court determines, on an objective basis, that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App.2006).

A person commits the offense of aggravated sexual assault of a child if he intentionally or knowingly causes the sexual organ of a child younger than fourteen years of age to contact or penetrate the mouth, anus, or sexual organ of the actor, or another person, or causes the penetration of the mouth of a child by the sexual organ of the actor. See Tex.Pen.Code Ann. § 22.021(a)(1)(B)(ii)(iii) & (2)(B)(Vernon Supp. 2009).

A person commits the offense of indecency with a child if, with a child younger than seventeen years and not the person's spouse, whether the child is of the same or opposite sex, the person engages in sexual contact with the child or causes the child to engage in sexual contact. See Tex.Pen.Code Ann. § 21.11(a)(Vernon 2003). The penal code defines “sexual contact” in Section 21.11 as the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:

(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or

(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.

Tex.Pen.Code Ann. § 21.11(c).

In Issues One and Two, Appellant contends that the evidence is legally insufficient to support the trial court's delinquency finding. Appellant's argument focuses on C.K.'s credibility given her history of behavioral problems, and evidence that the assault went unnoticed by several adults who were also present in the house at the time of the incident. In essence, Appellant argues that evidence of the surrounding circumstances, and the victim's behavioral history make her testimony completely incredible. Appellant implicitly admits that C.K.'s testimony is some evidence of the elements of the offenses charged. Therefore, to sustain Issues One and Two, this Court would have to engage in an evaluation of witness credibility and review the victim's testimony in a negative light. That would be contrary to the standard for a legal sufficiency review, and we decline to do so. See Adelman, 828 S.W.2d at 421. It was within the purview of the fact finder to believe all, or any part of any witness's testimony, including C.K.'s. See id. Viewed in the light most favorable to the verdict, C.K.'s account of the assault, the evidence of her outcry to Ms. Cross, and Dr. Kellogg's testimony provide a rational basis for a trier of fact to conclude that Appellant committed the charged offenses. Issues One and Two are overruled.

In Issues Three and Four, Appellant argues that the evidence is factually insufficient to support the trial court's finding of delinquency because the evidence supporting the verdict is outweighed by the great weight and preponderance of contrary evidence, rendering the verdict clearly wrong and manifestly unjust.

Again, Appellant bases his argument on evidence of the circumstances surrounding the assault and C.K.'s behavioral history. Regarding the physical surroundings at the time of the assault, Appellant points to testimony by C.K.'s mother and grandmother that the house where the assault occurred is small, 1,288 square feet. Ms. Armstrong testified that everything can be heard in the house at night because it is a wooden house on pier and beam. She also testified that she and her husband walk around the house at least twice during the night. In addition, there is evidence that eight people present at the house during the incident.

Furthermore, Appellant argues that C.K.'s problematic...