Jensen v. State

Decision Date10 January 2002
Docket NumberNo. 14-00-00476-CR.,14-00-00476-CR.
Citation66 S.W.3d 528
PartiesGregory Lee JENSEN, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

David Alan Disher, Houston, for appellants.

Joel H. Bennett, Galveston, for appellees.

Panel consists of Justices EDELMAN, FROST, and MURPHY.*

OPINION ON MOTION FOR REHEARING

KEM THOMPSON FROST, Justice.

We overrule appellant Gregory Lee Jensen's motion for rehearing. We withdraw this court's opinion of October 11, 2001, and we issue this opinion in its place.

A jury convicted appellant of aggravated sexual assault of a child.1 In ten points of error, appellant challenges his conviction on grounds of legal insufficiency, ineffectiveness of counsel, and erroneous evidentiary rulings. We affirm.

I. FACTUAL BACKGROUND

Appellant lived with his then-girlfriend, Jacque Stoddard, Jacque's son and daughter, ages six and three, and the couple's four-month-old baby. On the date of the alleged offense, Jacque went to work in the morning, and appellant and the two older children set out for the beach that afternoon. The exact time at which appellant and the children arrived home is disputed. Appellant claims they did not go home before picking up Jacque from work. Appellant's mother and grandmother testified that he came by the family business to get the baby sometime between 2:00 p.m. and 3:30 p.m. Around 5:00 p.m., appellant drove Jacque home from work. Jacque prepared dinner and told the children to change into their pajamas. Appellant left the home to take a ride during this period. After changing clothes, the three-year-old complainant ("K.B.") brought the swimsuit she had been wearing to her mother. The swimsuit was soiled with blood in the crotch area. Jacque testified that K.B. told her appellant had put his finger "down there" and that it hurt.

Upon hearing this statement from her young daughter, Jacque paged appellant, called appellant's grandfather to take her to the hospital, and locked the door to their home. When appellant arrived, he and Jacque exchanged words through the locked door. Appellant's grandfather arrived, and Jacque took the three children to his truck. Appellant approached the truck and took the oldest child out of the vehicle. When the grandfather refused to take Jacque to the hospital emergency room, she got out of the truck and ran to a nearby liquor store, where she called "911." Appellant fled the scene.

Officers Williams, Smart and McClane responded to Jacque's call and arrested appellant shortly after their arrival. Officer McClane testified that when appellant approached the apartment, he stated to Jacque, "Why are you accusing me of this? You're going to ruin everything. All I did was stick my finger in her butt with her bathing suit on." After appellant left with the officers, Jacque took K.B. to the hospital for an examination. A follow-up exam the next day revealed bruising beneath the hymen and on the hymen itself; an exam of the anus showed redness as well as irregularity and thickness of the folds of the anus.

The State charged appellant with aggravated sexual assault of a person less than fourteen years old, and not the appellant's spouse, alleging appellant had placed his finger in K.B.'s female sexual organ. See Tex. Pen.Code Ann. § 22.021(a)(1)(B)(i) (Vernon 1994 & Supp.2002). Appellant pleaded not guilty. The jury found appellant guilty as charged in the indictment. The trial court assessed punishment at forty years' confinement.

II. ISSUES AND ANALYSIS
A. Legal Sufficiency

In appellant's third point of error, he contends the evidence is legally insufficient to support his conviction. In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996). We give great deference "`to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Clewis, 922 S.W.2d at 133 (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution. Id. at 148 (citing Jackson, 443 U.S. at 326, 99 S.Ct. 2781). In our review, we determine "`whether ... any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. at 128-29 (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781).

The essential elements of aggravated sexual assault of a child are outlined in Texas Penal Code section 22.021. A person commits an offense "if the person intentionally or knowingly ... causes the penetration of the anus or female sexual organ of a child by any means ... and ... the victim is younger than 14 years of age." Tex. Pen.Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B). The definition of "child" is the same as that listed in Texas Penal Code section 22.011(c). Tex. Pen.Code Ann. § 22.021(b) (Vernon 1994 & Supp.2002). In that section, "child" refers to anyone younger than 17 years who is not the actor's spouse. Tex. Pen.Code Ann. § 22.011(c)(1) (Vernon 1994 & Supp. 2002). Aggravated sexual assault is a first degree felony offense. Tex. Pen.Code Ann. § 22.021(e) (Vernon 1994 & Supp.2002).

After conducting a thorough review of the evidence, we conclude that a rational trier of fact could have found, beyond a reasonable doubt, that appellant committed the offense alleged in his felony indictment. The complainant testified in the videotape that "he put his finger in my (inaudible) and make [sic] blood." When asked who touched her private part, K.B. answered, "Daddy."2 In her live testimony, the State asked K.B. if appellant had ever touched her in a way that hurt. She responded affirmatively and said that it happened "by holding my private part." She later illustrated the touching by pointing to the private parts of a doll. The prosecutor then asked her what appellant touched her with and whether she had said it was his middle finger. She responded affirmatively. "The testimony of a victim[,] standing alone, even when the victim is a child, is sufficient to support a conviction for sexual assault." Ruiz v. State, 891 S.W.2d 302, 304 (Tex.App.-San Antonio 1994, pet. ref'd) (citing Villalon v. State, 791 S.W.2d 130 (Tex.Crim.App.1990)). Moreover, Jacque, the outcry witness, stated that after K.B. showed her the blood on the swimsuit's crotch area, K.B. told her, "Daddy put his finger down there." This type of outcry statement from a child victim, by itself, can be sufficient to sustain a conviction for aggravated sexual assault. Rodriguez v. State, 819 S.W.2d 871, 873 (Tex.Crim.App.1991). Joy Blackmon, a physician's assistant in the University of Texas Medical Branch (UTMB) Department of Pediatrics, who serves as the clinical coordinator of the ABC Clinic, performed a follow-up exam on K.B. the day after the incident. Blackmon testified that the examination revealed bruising inside the genital area beneath the hymen as well as bruising on the hymen. She also testified that K.B.'s anus appeared red and that the rugae, which are the folds to the anus, were asymmetric and irregular looking. Blackmon stated that these findings were consistent with the medical history she had received. Dr. James Lukefahr, a pediatrician at UTMB and the medical director of the ABC Clinic, testified that he reviewed the exam records shortly after the exam and again before he came to court. He noted bruise-like findings "very clearly" evident in several locations in and around the hymen.

From this evidence a rational trier of fact could have concluded, beyond a reasonable doubt, that appellant committed the offense of aggravated sexual assault of a child. Therefore, we overrule appellant's third point of error.

B. Admission of Videotape

Appellant's first, sixth, and seventh points of error challenge the trial court's rulings on the admissibility of the complainant's videotaped testimony at trial.

1. Hearsay

In his first point of error, appellant contends the trial court erred when it admitted the videotaped testimony of K.B. because it was hearsay.3 Appellant relies on the decision of the Texas Court of Criminal Appeals in Matz v. State as his only authority for error.

Appellant contends the court, in Matz v. State, held the videotape was hearsay. 14 S.W.3d 746, 747 (Tex.Crim.App.2000). That is not an accurate reading of the Matz case. Rather, the Matz court found that the lower court misunderstood the basis for appellant's complaint about admission of videotaped testimony. Id. Stating that the appellant objected to the form and not the substance of the videotape, the Court of Criminal Appeals held that the lower court erred when it found he failed to preserve error because he did not object to live testimony. Id. The Matz court limited its holding to the issue of preservation of error and remanded for a determination of the merits. Id.; see also Matz v. State, 21 S.W.3d 911, 912 (Tex.App.-Fort Worth 2000, pet. ref'd).

We find no merit in appellant's argument. Although not asserted in appellant's brief, a plain-language reading of article 38.071 of the Texas Code of Criminal Procedure indicates that the trial court may have erred in admitting the videotape. See Tex.Code Crim. Proc. Ann. art. 38.071 (Vernon Pamph.2002). The statute states that "this article applies only to a proceeding in the prosecution of an offense ... if the offense is alleged to have been committed against a child 12 years of age or younger and if the trial court finds that the child is unavailable to testify at the trial of the offense." Id. art. 38.071, § 1. Here, K.B. testified in court following the viewing of the videotape.

When the Second Court of Appeals initially...

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