Murphy v. State, 10-98-131-CR

• Decision Date: 24 November 1999
• Docket Number: No. 10-98-131-CR,10-98-131-CR
• Citation: 4 S.W.3d 926
• Parties: (Tex.App.-Waco 1999) TIMOTHY MURPHY, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

Page 926

4 S.W.3d 926 (Tex.App.-Waco 1999)

TIMOTHY MURPHY, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 10-98-131-CR.

IN THE TENTH COURT OF APPEALS.

November 24, 1999.

From the 54th District Court McLennan County, Texas Trial Court # 96-777-C.

Before Chief Justice Davis, Justice Vance, and Justice Gray.

OPINION

GRAY, Justice.

This case illustrates one of the usual defenses to aggravated sexual assault when the victim is very young "I touched her but there was no penetration." The central issue in this appeal is what evidence is legally and factually sufficient to support the conviction? Is the victim's testimony that "he touched my private" enough? When you add to the victim's testimony a doctor's testimony regarding the anatomy of the female sexual organ, is that enough? What if you add the testimony of the victim's mother that she saw the appellant on the couch with his hand between the nine-year old victim's naked spread legs and could only see his fingers down to the second knuckle, but could not see the tips of his fingers? Because we hold the evidence both legally and factually sufficient, we overrule appellant's complaints and affirm the trial court's judgment.

PROCEDURAL BACKGROUND

Timothy Murphy was convicted by a jury of aggravated sexual assault and sentenced to eight years in prison. Tex Pen. Code Ann. § 22.021(a)(1)(B)(i) (Vernon Supp. 1994). Murphy challenges his conviction by four points of error. His first two points assert that the evidence was legally and factually insufficient to support the verdict. Points three and four claim the trial court erred in allowing improper cross-examination of a defense witness during the punishment stage.

FACTUAL BACKGROUND

Murphy was married to the mother of M., the 9-year old complainant, during the relevant time period. M. testified at trial about several occasions during which Murphy touched her "private." M. related a specific instance in which Murphy entered her bedroom while she was sleeping, pulled down her underwear, and "rubbed" her "private." M. further testified that on another occasion she had just finished bathing and was wearing a towel when Murphy asked her to sit next to him on the couch and touched her "private." During this incident, M. testified that her mother entered the room at which time Murphy stopped touching her. M.'s mother testified that she witnessed this incident, after which she took M. and her other child to a neighbor's home and later notified the police.

LEGAL AND FACTUAL SUFFICIENCY

Before a defendant may be found guilty of aggravated sexual assault of a child, Section 22.021 of the Texas Penal Code requires proof that the defendant intentionally or knowingly caused the penetration of the anus or female sexual organ of a child by any means. Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i). Murphy claims the evidence is both legally and factually insufficient to establish the element of penetration.

Legal Insufficiency--applicable law

When both legal and factual-sufficiency points of error are raised, the appellate court must first examine the legal sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). In determining whether the evidence is legally sufficient to support the verdict, we view the evidence in the light most favorable to the verdict, asking whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Weightman v. State, 975 S.W.2d 621, 624 (Tex. Crim. App. 1998); Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)); Westfall v. State, 970 S.W.2d 590, 595 (Tex. App. Waco 1998, pet. ref'd). When the inferences raised by the evidence are in conflict, "we must presume that the trier of fact resolved any such conflict in favor of the prosecution and must defer to that resolution." Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993).

The Evidence

At trial, M. testified about at least two separate incidents in which Murphy touched what M. referred to as her "private." During the first incident, M. testified that Murphy entered her bedroom, lifted her nightgown, pulled down her panties, and "rubbed" her "private." M. indicated that Murphy had pulled her legs apart during this incident. The record indicates that M. demonstrated the manner in which Murphy touched her by using anatomically correct dolls. She used two fingers, and reiterated that the rubbing occurred on her "private area." Upon questioning by the prosecutor as to whether or not it hurt when Murphy did this, M. replied, "kind of."

M. related another incident when, just after her bath, she entered the dining room wearing a towel to retrieve her clothes. She said that Murphy asked her to sit with him on the couch, and he proceeded to touch her "private." She testified that Murphy also used two fingers during this incident. M. further testified that this time, Murphy used a "cream colored lotion" which he rubbed on her "private."

The prosecutor later asked M. to describe her "private" so that the prosecutor could draw a diagram showing the way M. was touched. M. told the prosecutor to draw two flaps of skin and two holes, a "first hole" and a "second hole." She also told the prosecutor to draw "a little bit of skin that sticks out" on either side of the first hole. She indicated that Murphy rubbed her at the "first hole" and sometimes at the "second hole," and that it would hurt when he rubbed the second hole.

Cindy Murphy, M.'s mother, testified that she walked into the room during the incident in which Murphy was on the couch touching M. She also stated that she saw Murphy's hand between M's legs, which were apart. She could see part of Murphy's hand, above the second knuckle, but could not see the tips of his fingers.

The State called Dr. Lauren Barron, a physician who examined M. several days after the second incident. Dr. Barron testified that her examination of the patient revealed no genital abnormalities. She also testified that, due to the "destendable" (flexible) design of the female genitalia, penetration by a finger or other instrument would not necessarily have been evident from the examination she performed. Dr. Barron concluded from her examination that she could neither confirm nor eliminate the possibility of penetration. She also testified to the general structure of the female sexual organ, stating that it includes the labia majora, the labia minora, the clitoris and the vagina introitus. She stated that, in general, a woman's legs must be spread apart before the area beneath the labia majora (including the urethra, labia minora, and vagina introitus) can be exposed.

Penetration--applicable law

The State may prove penetration by circumstantial evidence. Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990). The victim need not testify as to penetration. Id. Evidence of the slightest penetration is sufficient to uphold a conviction, so long as it has been shown beyond a reasonable doubt. Luna v. State, 515 S.W.2d 271, 273 (Tex. Crim. App. 1974); Rodriquez v. State, 762 S.W.2d 727, 732 (Tex. App. San Antonio 1988), pet. dism'd as improvidently granted, 815 S.W.2d 666 (Tex. Crim. App. 1991). In Vernon v. State, the Court of Criminal Appeals determined what constitutes a "penetration" for purposes of aggravated sexual assault. That court held:

[M]ere contact with the outside of an object does not amount to penetration of it. But pushing aside and reaching beneath a natural fold of skin into an area of the body not usually exposed to view, even in nakedness, is a significant intrusion beyond mere external contact. Consequently, it is not ungrammatical to describe Appellant's touching of complainant in this case as a penetration.

841 S.W.2d 407, 409 (Tex. Crim. App. 1992).

Application of Law to Facts

In this case, M. testified that Murphy rubbed her "first and second holes", that it was painful when Murphy did so, and that Murphy used two fingers and lotion during the incident. Her mother testified that she observed Murphy and M. on the couch, with M.s legs spread apart and Murphy's hand between M.'s legs, touching her pubic area. She could see part of Murphy's hand, but not the tips of his fingers. In light of this evidence and the medical testimony describing the structure of the female genitalia, a reasonable fact-finder could have concluded that Murphy's fingers penetrated M.'s sexual organ if they reached beyond the outer layer of skin comprising the external genitalia or labia. The evidence is thus legally sufficient to support the jury's verdict. Murphy's first issue is overruled.

Factual Sufficiency--applicable law

In his second issue, Murphy asserts the evidence is factually insufficient to establish the element of penetration. In conducting a factual-sufficiency review, we examine all of the evidence impartially, without the prism of "in the light most favorable to the verdict," and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). When performing our review, we give due deference to the fact finder's assessment of the weight and credibility of the evidence. Calhoun v. State, 951 S.W.2d 803, 810 (Tex. App. Waco 1997, pet. ref'd). We will defer to the jury, finding the evidence factually insufficient only where necessary to prevent manifest injustice. Cain, 958 S.W.2d at 407.

The Evidence

As a component of our duty to examine all of the evidence, Murphy invites us to consider the lack of physical evidence of penetration, as well as M.'s testimony that Murphy merely "touched" or "rubbed" her. Murphy also cites the failure of the victim's mother to contact the police for several days after she witnessed the incident....