Pennon v. State, No. 06-01-00216-CR (Tex. App. 11/18/2003)
| Decision Date | 18 November 2003 |
| Docket Number | No. 06-01-00216-CR.,06-01-00216-CR. |
| Parties | TOMMY PENNON, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 202nd Judicial District Court, Bowie County, Texas, Trial Court No. 00-F-0189-202.
Before Morriss, C.J., Ross and Carter, JJ.
OPINION
Tommy Pennon was convicted by a jury of aggravated sexual assault of his girlfriend's daughter in violation of TEX. PEN. CODE ANN. § 22.021.1 Pennon pled true to the enhancement paragraph of the indictment, and the jury assessed punishment at life imprisonment. In Pennon v. State, No. 06-00-00227 (Tex. App. Texarkana Nov. 29, 2000, no pet.) (not designated for publication), this Court dismissed Pennon's appeal for lack of jurisdiction because notice of appeal was not timely filed. On application for writ of habeas corpus, Pennon was granted an out-of-time appeal by the Texas Court of Criminal Appeals. Ex parte Pennon, No. 74,194 (Tex. Crim. App. Oct. 10, 2001) ().
Pennon alleges six points of error: (1) the evidence is legally and factually insufficient to support his conviction; (2) the trial court erred in admitting hearsay testimony as an "outcry" statement; (3) the trial court erred in sustaining the State's objection to defense counsel's closing argument concerning the absence of DNA evidence; (4) the trial court erred in allowing the admission of testimony concerning Pennon's possession of knives; (5) the trial court unconstitutionally limited cross-examination by sustaining the State's objection regarding the origin of the victim's knowledge about adult sexuality; and (6) Pennon was denied his constitutional right to effective assistance of counsel. We sustain the third and fourth points, but find the errors harmless. We overrule the other contentions and affirm the judgment.
The State's evidence showed that Pennon lived with his girlfriend, Antoinette Myers, and her two children, a twelve-year-old boy and an eleven-year-old girl, Suzanne Smith.2 On Saturdays in January 2000, Myers worked overtime at her job, and the boy child attended school. On one Saturday in early January, Pennon and Suzanne were at home alone. Suzanne testified Pennon forced her to remove her clothing or receive a "whooping." She further testified that Pennon forced her to touch his penis and that he attempted to put his penis inside her, indicating the opening in the front of an anatomically correct doll, but that it would not fit. Pennon then told her to turn over, and he put his penis in her "back," in her rectum.
Almost a month later, in February 2000, Suzanne told her brother of the incident. Her brother telephoned their mother at work February 4, 2000, and Suzanne told her, "Tommy raped me." Myers instructed her children to immediately leave the house and go to a friend's residence. Myers telephoned the police and went to the friend's residence, where Suzanne again told her, "Tommy raped me," but more specifically told her, "he stuck his penis in her rectum and tried to do her vagina, but it wouldn't fit."
Suzanne was taken to the hospital for medical care. The medical examination revealed redness in the outer vaginal area and two small tears in the anus, findings consistent with sexual assault. The defense introduced evidence the small tears were also consistent with constipation.
In our review of the legal sufficiency of the evidence, we employ the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319 (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); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991). In contrast to legal sufficiency, a factual sufficiency review dictates that the evidence be viewed in a neutral light, favoring neither party. Johnson, 23 S.W.3d at 7; see Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). In determining the factual sufficiency of the evidence to establish the elements of the offense, we view all the evidence in a neutral light and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong, or so weak as to be clearly wrong or manifestly unjust. Johnson, 23 S.W.3d at 7; Clewis, 922 S.W.2d at 129. "However, a factual sufficiency review must be appropriately deferential so as to avoid the appellate court's substituting its own judgment for that of the fact finder." Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996); see Clewis, 922 S.W.2d at 133. "The court's evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony." Jones, 944 S.W.2d at 648.
Pennon contends the evidence is both factually and legally insufficient to establish his conviction beyond a reasonable doubt. Pennon does not specify which element of the offense was not supported by factually or legally sufficient evidence, but the inference from his defense at trial and from his appeal is that the State failed to prove beyond a reasonable doubt that a sexual assault occurred, or that he committed any sexual assault. Pennon contended at trial there was no physical evidence of a sexual assault and no physical evidence linked him to any sexual assault. He contends on appeal that the only direct evidence of any sexual contact was the testimony of the minor child. He contends the doctor's testimony was speculative as to the origin of the injury and constipation was a possible alternative cause for Suzanne's injuries. He elicited testimony from his mother, Augusta Mitchell, that Suzanne was experiencing symptoms of constipation during this time period, and conflicting testimony from Myers that she treated Suzanne for constipation or diarrhea. He also pointed out that no DNA evidence or other forensic evidence was established to tie him with any sexual assault.
The evidence of Suzanne's constipation was meager, and she testified she was not constipated during this time period. The credibility of the witnesses is within the province of the jury. Jones, 944 S.W.2d at 648. The jury was entitled to disbelieve Pennon's mother and believe Suzanne. There was also no suggestion it was possible to collect DNA evidence or other forensic evidence at the point in time when the medical examination was administered.
The doctor's examination, which showed anal tears and vaginal redness, showed injuries consistent with sexual abuse, and were injuries that directly corroborated the testimony of Suzanne's account of the abuse. Suzanne's testimony was sufficient in itself because a conviction under TEX. PEN. CODE ANN. § 22.021 is "supportable on the uncorroborated testimony of the victim of the sexual offense . . . ." TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon Supp. 2004).3 In addition to Suzanne's testimony, Myers testified as the outcry witness that Suzanne told her, "Tommy raped me," and provided her with specific details, which were again consistent with the injuries discovered in the medical examination. Outcry testimony of a child is admitted as an exception to the hearsay rule, meaning it is considered as substantive evidence, admissible for the truth of the matter asserted in the testimony. Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991).
Taken in the light most favorable to the verdict, a rational trier of fact could have found all the elements of the offense beyond a reasonable doubt based on the outcry testimony, Suzanne's testimony, and the medical examination testimony. Viewing the evidence neutrally, the great weight and preponderance of the evidence indicates Pennon did sexually assault Suzanne and we find the evidence was not so weak as to be clearly wrong or manifestly unjust.
Pennon contends the testimony from Myers concerning Suzanne's outcry statement to her was inadmissible because no evidence in the record suggests Pennon received the proper statutory notice such testimony would be used and because it was a general allegation of sexual abuse that did not clearly describe the events to which the mother testified.
The outcry statute provides that the first person eighteen years of age or older, other than the defendant, to whom the child victim makes a statement about the offense, may testify about the statement, notwithstanding the hearsay rule, if: (1) at least fourteen days before trial, the party intending to offer the statement notifies the other party of its intent, provides the other party the name of the witness through whom it intends to offer the statement, and provides the other party with a written summary of the statement; (2) the trial court finds, after a hearing, that the statement is reliable based on the time, content, and circumstances of the statement; and (3) the child testifies or is available to testify. TEX. CODE CRIM. PROC. ANN. art. 38.072 (Vernon Supp. 2004); Smith v. State, 40 S.W.3d 147, 149 (Tex. App. Texarkana 2001, no pet.). The requirements of Article 38.072 are mandatory. Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990); see also Dorado v. State, 843 S.W.2d 37, 38 (Tex. Crim. App. 1992).
The trial court has broad discretion to determine whether the child's statement falls within the hearsay exception. The exercise of that discretion will not be disturbed unless the record shows a clear abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Tear v. State, 74 S.W.3d 555, 558 (Tex. App. Dallas 2002, pet. ref'd). Stated differently, we will not reverse on appeal unless the trial court's decision is outside the zone of...
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