Karnes v. State

• Decision Date: 23 February 1994
• Docket Number: Nos. 05-93-00102-CR--05-93-00104-CR,s. 05-93-00102-CR--05-93-00104-CR
• Citation: 873 S.W.2d 92
• Parties: Noah Charles KARNES, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 92

873 S.W.2d 92

Noah Charles KARNES, Jr., Appellant, v. The STATE of Texas, Appellee.

Nos. 05-93-00102-CR--05-93-00104-CR.

Court of Appeals of Texas,

Dallas.

Feb. 23, 1994.

Garland D. Cardwell, Sherman, for appellant.

Thomas H. Fowler, Sherman, for appellee.

Before BAKER, BURNETT and ROSENBERG, JJ.

OPINION

ROSENBERG, Justice.

Noah Charles Karnes, Jr. appeals his jury convictions for aggravated sexual assault of a child under fourteen years of age. The jury assessed an enhanced sentence of ninety-nine years' confinement and a $10,000 fine in each case. Appellant brings six points of error. Appellant contends that the trial court erred by (1) denying his motion to dismiss the indictments due to pre-indictment delay, (2) excluding admissible evidence, (3) exempting a witness from the "exclusion rule," (4) denying his motion to quash the indictments, and (5) overruling his objection to improper jury argument. Appellant also contends that the evidence is insufficient to sustain his convictions. Appellant's contentions are without merit. We affirm the trial court's judgments.

SUFFICIENCY OF THE EVIDENCE

In point of error four, appellant contends that the evidence is insufficient to support his convictions. Appellant asserts that the evidence does not prove that he intentionally and knowingly caused the sexual organ of an animal to penetrate the sexual organ of J__ or the anuses of C__ and S__. The State contends that the evidence is sufficient to establish each element of the offenses.

When evaluating the sufficiency of the evidence, appellate courts must review 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. Upton v. State, 853 S.W.2d 548, 551 (Tex.Crim.App.1993); Brewer v. State, 852 S.W.2d 643, 645 (Tex.App.--Dallas 1993, pet. ref'd).

The fact finder, as the exclusive judge of the facts, the witnesses' credibility, and the weight given their testimony, is free to believe or disbelieve the testimony of any witness. Flanagan v. State, 675 S.W.2d 734, 746 (Tex.Crim.App.1982) (op. on reh'g). The trier of fact may reconcile conflicts in the testimony and accept or reject any or all of the evidence on either side. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992). The fact finder need not believe even uncontroverted testimony. See Johnson v. State, 571 S.W.2d 170, 173 (Tex.Crim.App.1978). Additionally, the fact finder may draw reasonable inferences and make reasonable deductions from the evidence. Benavides v. State, 763 S.W.2d 587, 588-89 (Tex.App.--Corpus Christi 1988, pet. ref'd).

In applying these standards, the incriminating evidence is as follows. J__ and her brothers, C__ and G__, returned home from school to find appellant, their mother, and brother, S__, in the front room. J__ testified that she saw appellant making S__ get on his hands and knees so appellant could put the dog's penis in S__'s bottom. J__ explained that her mother was holding the dog and standing him up on two legs while appellant held the dog's front paws and pushed the dog's penis into S__'s bottom.

J__ testified that appellant told her and her brothers to get undressed. J__ testified that appellant did the same thing to her, C__, and G__ that he had done to S__. J__ further testified that appellant and her mother laid the dog down and made her sit on him. J__ testified that she sat on the dog's penis, and the dog's penis touched her vagina. J__ explained that the dog's penis touched her "down there where you pee-pee." She explained that she knew that the dog's penis touched down there because she could feel it. The State also admitted into evidence J__'s drawings which depicted J__ sitting on the dog.

S__ testified that the dog's penis went in his behind. S__ testified that he felt something when the dog's penis went in his behind, but it did not hurt. C__ testified that the dog stuck his penis in his bottom. C__ testified that it hurt when the dog's penis was put in his bottom. G__ testified that appellant would get the dog hard and make the dog do it with his sister and brothers. G__ testified that appellant made the dog stick his private in his sister. G__ explained that the dog's private went into J__'s "middle's part, where she pees."

The State relied on the children's testimony and their drawings to establish the elements of the offense of aggravated sexual assault as charged in the indictments. ¹ Appellant testified in his own behalf and denied committing the offenses.

Appellant contends that the victims' testimony was not sufficiently credible to prove "actual physical penetration" without corroborating expert testimony or physical evidence that an animal's sexual organ can physically penetrate a person's female sexual organ or anus. Appellant concludes that the State did not meet its burden to prove the element of penetration beyond a reasonable doubt.

Appellant's contentions attack the credibility of the evidence, not its sufficiency. The jury determines the credibility of the evidence, not the appellate court. See Williams v. State, 692 S.W.2d 671, 676 (Tex.Crim.App.1984). Once the trial court determined that the children were competent to testify, the issue of credibility became the sole province of the jury. ² The well-established principle that credibility is judged solely by the fact finder unequivocally applies to the testimony of a victim of a sexual assault. See Turner v. State, 732 S.W.2d 91, 92 (Tex.App.--Beaumont 1987, no pet.); see also Dalgleish v. State, 787 S.W.2d 531, 534 (Tex.App.--Beaumont 1990, pet. ref'd) (citing Hohn v. State, 538 S.W.2d 619, 621 (Tex.Crim.App.1976) and Rhodes v. State, 624 S.W.2d 770, 771 (Tex.App.--Houston [14th Dist.] 1981, no pet.)). The mere fact that the eye-witness-victims are children under the age of fourteen is of no relevance to this Court when reviewing the sufficiency of the evidence.

Furthermore, we are guided by the following principles when reviewing a sufficiency-of-the-evidence challenge. First, a child may testify using language appropriate for her age to describe the sexual assault, including the element of penetration. Villalon v. State, 791 S.W.2d 130, 134 (Tex.Crim.App.1990). We do not sit as a thirteenth juror to evaluate the weight to be given a witness' testimony based on her use of unsophisticated language or limited vocabulary. Villalon, 791 S.W.2d at 134. On the contrary, this Court may keep in mind a child-witness' lack of technical knowledge in accurately describing the parts of the body when reviewing the child's testimony. Montoya v. State, 841 S.W.2d 419, 422 (Tex.App.--Dallas 1992, pet. ref'd); O'Hara v. State, 837 S.W.2d 139, 142 (Tex.App.--Austin 1992, pet. ref'd) (citing Clark v. State, 558 S.W.2d 887, 889 (Tex.Crim.App.1977)); Chase v. State, 750 S.W.2d 41, 44 (Tex.App.--Fort Worth 1988, pet. ref'd); Bryant v. State, 685 S.W.2d 472, 474 (Tex.App.--Fort Worth 1985, pet. ref'd).

Second, the testimony of a sexual assault victim alone is sufficient evidence of penetration to support a conviction, even if the victim is a child. Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App. [Panel Op.] 1978); Montoya, 841 S.W.2d at 422; O'Hara, 837 S.W.2d at 141-42; Hellums v. State, 831 S.W.2d 545, 547 (Tex.App.--Austin 1992, no pet.); Jones v. State, 817 S.W.2d 854, 856 (Tex.App.--Houston [1st Dist.] 1991, no pet.); Villanueva v. State, 703 S.W.2d 244, 245 (Tex.App.--Corpus Christi 1985, no pet.); see Gonzalez v. State, 647 S.W.2d 369, 371 (Tex.App.--Corpus Christi 1983, pet. ref'd).

Third, the court of criminal appeals recently defined the term penetration within the meaning of the aggravated sexual assault statute. TEX.PENAL CODE ANN. § 22.021 (Vernon 1989); Vernon v. State, 841 S.W.2d 407 (Tex.Crim.App.1992). Penetration, within the meaning of section 22.021 of the penal code, occurs so long as contact with the female sexual organ could reasonably be regarded by ordinary English speakers as more intrusive than contact with outer vaginal lips. Vernon, 841 S.W.2d at 409. Penetration of the vaginal canal is not required to prove penetration. Vernon, 841 S.W.2d at 409. "Female sexual organ" is a more general term than "vagina" and refers to the entire female genitalia, including both vagina and the vulva. Aylor v. State, 727 S.W.2d 727, 729 (Tex.App.--Austin 1987, pet. ref'd). Touching beneath the fold of the external genitalia amounts to penetration within the meaning of the aggravated sexual assault statute. Vernon, 841 S.W.2d at 409.

The children's testimony established each element of the offense as alleged in the indictments. Nevertheless, appellant contends that the State must present an expert's testimony to establish that a dog's penis could physically penetrate a human's sexual organ or anus.

Again, appellant's contention attacks the credibility of the witnesses, not the sufficiency of the evidence. The children fully described the specific details of the sexual assault. Penetration, regardless of the object being used, is a matter within the knowledge of an ordinary person about which a complainant may testify. Garcia, 563 S.W.2d at 928; Hellums, 831 S.W.2d at 547; Jones, 817 S.W.2d at 856. Accordingly, a reasonable trier of fact could determine solely from the children's testimony that an animal's sexual organ can physically penetrate a person's anus or female sexual organ. Appellant's contention is without merit.

Once the jury has made its decision in assessing and weighing the probative value of the evidence, this Court may not re-evaluate the probative value of an individual item of evidence in its review of the sufficiency of the evidence. Fernandez v. State, 805 S.W.2d 451, 457 (Tex.Crim.App.1991). We conclude that the jury could have found beyond a reasonable doubt the essential elements of the offense of aggravated sexual assault as alleged in the indictments. We over...