Mosley v. State

• Decision Date: 30 July 2004
• Docket Number: No. 06-02-00121-CR.,06-02-00121-CR.
• Citation: 141 S.W.3d 816
• Parties: Walter MOSLEY, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

141 S.W.3d 816

Walter MOSLEY, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 06-02-00121-CR.

Court of Appeals of Texas, Texarkana.

Submitted July 1, 2004.

Decided July 30, 2004.

Discretionary Review Refused October 27, 2004.

Appeal from the 202nd Judicial District Court, Bowie County, Leon F. Pesek, Sr., J Kyle B. Johnson, Houston, for appellant.

Nicole Habersang, Asst. Dist. Atty., Texarkana, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice ROSS.

Walter Mosley, Jr., was found guilty by a jury of aggravated sexual assault on his three-year-old step-granddaughter.¹ The jury assessed his punishment at twenty-six years' imprisonment.

Mosley appeals, contending (1) there was legally and factually insufficient evidence to support his conviction; (2) his trial counsel's errors and omissions constituted ineffective assistance of counsel; (3) the trial court erred in admitting hearsay statements by Mosley's wife; (4) the trial court erred in deferring to the trial judge—who had recused himself from the case—in its ruling on his motion for continuance; and (5) it was an abuse of discretion to deny his motion to recuse the assigned judge from hearing his motion for new trial.

I. LEGAL SUFFICIENCY OF EVIDENCE

Mosley contends the evidence supporting his conviction for aggravated sexual assault is legally insufficient because there was no evidence he penetrated Jane's sexual organ. A person commits aggravated sexual assault if that person intentionally or knowingly causes the penetration of the sexual organ of a child and the victim is younger than fourteen years of age. TEX. PEN.CODE ANN. § 22.021 (Vernon Supp. 2004). The indictment charged that Mosley, on or about November 2, 2000, intentionally or knowingly penetrated the female sexual organ of Jane, a child younger than fourteen years of age who was not his spouse, by inserting his finger into her female sexual organ.

In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This calls on the court to view the relevant 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 crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim.App.1999). We consider all evidence presented at trial; however, we do not reweigh the evidence or substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex.Crim. App.2000). The jury is the sole judge of the credibility of witnesses and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.1997).

In this case, Christy McCoy, Jane's mother, testified as the outcry witness. She testified that Mosley is married to her mother and that Jane spent a lot of time at their house. She testified Jane referred to her mother as "Nana" and to Mosley as "Pawpaw." McCoy testified Mosley spent a lot of time playing with Jane and watching television with her in the bedroom. She also testified he bought her a lot of toys. On November 2, 2000, when Jane was three years old, she spent the night at the Mosleys' house. When she returned home the following evening, she was itching, scratching, and pulling at her panties, and she made a comment that her booty tickled. McCoy testified "booty" is what Jane calls her private area. That evening, while Jane and McCoy sat on the couch watching cartoons, Jane suddenly stood and whispered, "Do spiders ever get in your booty?" McCoy replied, "No, [Jane], why? Has a spider bit you on your booty?" Jane replied that one had, and pointed to her private area, as where the spider bit her. McCoy then asked Jane who had the spider, and she replied, "Pawpaw." McCoy asked Jane what she and Pawpaw were doing. She replied they were in the woods looking for wolves and the spider bit her. McCoy took Jane into the bedroom and discovered her private area was red and irritated. Jane then made the comment, "That spider just crawled in my belly and crawled out."

McCoy took Jane to the emergency room at Christus St. Michael Health System in Texarkana, where a physician and a nurse performed a brief visual examination which, according to their testimony, revealed injuries consistent with sexual abuse. McCoy then took Jane to Arkansas Children's Hospital in Little Rock for a more thorough sexual assault examination.

McCoy testified that, before this time, she had been noticing unusual behavior in Jane. Jane was having nightmares; she also complained often of her private area hurting and itching. McCoy testified Jane would "mess with herself and then smell her fingers and ... laugh about it." McCoy testified that, since Jane stopped going to the Mosleys' house, she had not been acting out sexually or having nightmares.

Jane also testified at trial. At that time, she was five years old. She identified Mosley in the courtroom as her Pawpaw. The State produced an anatomically correct doll, and Jane testified she calls the part between the legs a "booty." Jane testified she was on the bed in her Nana's room when Pawpaw touched her booty with his hand. Jane demonstrated where Pawpaw touched her by pointing to the genital area of the doll. She testified that her Pawpaw hurt her when he touched her booty and that no one else had ever touched her or hurt her in that way. She testified she told her mother what happened shortly after it occurred. After she told her mother, she went to doctors, where they found "a little bite" inside her booty. She also testified no one told her to say her Pawpaw touched her booty.

The physicians who examined and treated Jane also testified. Jim Ed Brewer, M.D., a resident at Arkansas Children's Hospital, and Gerald Green, M.D., a pediatrician at the same hospital, conducted a sexual assault examination on Jane. Brewer testified Jane had a tear in her hymen and in her posterior fourchette. He testified these injuries were sustained through direct penetration of the vagina. Brewer further testified these tears were consistent with sexual abuse and digital penetration.

Green also testified Jane had two tears, one to the hymen and one to the posterior fourchette. He testified that these types of injuries have been researched extensively and that injuries like Jane suffered are believed to be exclusively caused by penetration. Green testified the types of tears Jane had were consistent with sexual abuse. He also concluded that, due to Jane's size and the degree of tearing, it was very unlikely the injuries were self-inflicted.

Matthew Young, M.D., a physician at Christus St. Michael Health System's emergency department in Texarkana, testified he did not do an extensive examination on Jane, but did observe redness and damage to Jane's skin that he thought could have been caused by sexual abuse. Brandi Ross, a registered nurse at St. Michael, testified she observed redness and a hymenal tear consistent with penetration.

Finally, Missy Ward, a child protective services specialist, testified regarding some of the signs or indicators of sexual abuse in children. She testified sexually abused children will often have nightmares or act out sexually by touching their genital areas.

Mosley points out that Jane never testified he penetrated her sexual organ and, according to him, her testimony denied that any penetration occurred at all. Jane testified that Mosley touched her on the outside of her clothes and that he did not move his hand when he touched her. She also testified that Pawpaw hurt her on the outside of her booty and that she had never been hurt on the inside of her booty. He contends that, without direct testimony on penetration, there was legally insufficient evidence of his guilt to sustain a conviction.

In Villalon v. State, 791 S.W.2d 130, 133-34 (Tex.Crim.App.1990), the Texas Court of Criminal Appeals held there is no requirement a child victim be able to testify as to penetration. Penetration, like other essential elements of an offense, may be proven by circumstantial evidence. See id. This rule reflects the important public policy that we cannot expect the child victims of violent crimes to testify with the same clarity and ability as is expected of mature and capable adults. Id. To expect such testimonial capabilities of children would be to condone, if not encourage, the searching out of children to be the victims of crimes, such as the instant offense, in order to evade successful prosecution. Id.

Relying on these principles, we find the evidence sufficient to establish penetration. While Jane did testify that Mosley only touched her on the outside of her clothes and that it only hurt on the outside of her booty, other portions of her testimony, along with the outcry witness and the medical testimony, were legally sufficient to establish Mosley penetrated Jane's sexual organ. Jane testified that her Pawpaw touched her booty, that he hurt her when he touched her booty, and that no one else had ever touched her like that or hurt her in that manner. She testified she told her mother about the incident, and she took her to doctors, where they found "a little bite" inside her booty. Her mother, the outcry witness, testified Jane asked her, "Do spiders ever get in your booty?" (Emphasis added.) Jane also told her, "That spider just crawled in my belly and crawled out." (Emphasis added.) The medical testimony supports the conclusion that penetration occurred. Green and Brewer testified...