Smith v. State, No. 01-05-01095-CR (Tex. App. 1/11/2007)
| Decision Date | 11 January 2007 |
| Docket Number | No. 01-05-01096-CR.,No. 01-05-01095-CR.,01-05-01095-CR.,01-05-01096-CR. |
| Parties | ROBERT LEE SMITH, Appellant v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 184th District Court, Harris County, Texas, Trial Court Cause Nos. 961276 & 966324.
Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.
In two separate cases,1 a jury found appellant, Robert Lee Smith, guilty of the offense of aggravated sexual assault of a child2 and assessed his punishment at confinement for fifty years in each case, with the sentences to run concurrently.3 In six issues, appellant contends that the evidence is legally and factually insufficient to support his convictions and that he received ineffective assistance of counsel.
We affirm.
Sheila DeGar, the complainant's mother, testified that on August 2, 2003, DeGar and appellant, who was the father of her 11-year-old son, went to a bar, returned to DeGar's home during the early morning hours of August 3, 2003, watched television, and then fell asleep on the living room floor. DeGar awoke around 6:30 a.m., and appellant was no longer in the room. When appellant returned to the living room around 7:15 a.m., it appeared that appellant was coming from her daughter's bedroom. However, DeGar did not see which door appellant came out of when he returned to the living room. Appellant stayed at DeGar's house until later that afternoon.
DeGar explained that the complainant, who was behaving strangely that day, seemed angry, was cursing, and was "getting attitudes." The complainant called Amanda Clark, her best friend, packed a bag of clothes, and waited for Clark to pick her up to go to Clark's house. Later, DeGar and Clark's mother had a "serious conversation" about appellant. DeGar then took the complainant to Texas Children's Hospital for an examination. DeGar explained that after the assault, the complainant had "very bad moods," tried to kill herself twice, and gained 100 pounds. DeGar also stated that the complainant now eats and sleeps a lot, spends lots of time secluded in her room, is scared to bathe without her mother, and maintains a friendship only with Clark. DeGar testified that appellant had previously commented to her that the complainant "was finer than a mother fucker."
The complainant testified that in June 2003, when she was 13 years old, appellant entered her bedroom as she was sleeping, got into her bed, kissed her back, squeezed her breasts, and tried to pull down her pants. However, she got up from her bed and ran to the bathroom. When appellant asked her if she was going to tell her mother, the complainant said no. The complainant also stated that appellant had previously called her, said things of a sexual nature, and told her that she was "fine." The complainant further testified that in the early morning of August 3, 2003, appellant entered her bedroom, woke her up, touched her breasts, pulled her nightgown up, and kissed her neck and breasts. Appellant kissed her stomach, removed her panties, and put his tongue and finger in her vagina for about five minutes. Appellant then got up, closed the door, unzipped his pants, and exposed his penis to the complainant. Although the complainant squeezed her legs together, appellant laid down on top of the complainant, pulled her legs apart, and stuck the tip of his penis in her vagina for about five minutes. The complainant was crying, but appellant could not see her crying. Appellant then got up, and as he left the room, told the complainant, "Girl, you tough." The complainant explained that she did not yell because she was in shock.
After the assault, the complainant called Clark and packed some clothes because she did not want to return home "for a long time." The complainant explained that she was not mad or sad, but simply did not want appellant at her house. She stated that at the time of the assault she was 13 years old and was not married. After the assault, the complainant had bad nightmares for a couple of months, cut her wrists, took some pills, and now eats a lot. Also, she has her mother bathe with her and accompany her to school. The complainant also stated that although she "liked" appellant's son, she did not have a "crush" on him or like him as a "boyfriend."
Clark testified that during the late summer of 2003, the complainant told her a "secret" about appellant, who was the complainant's stepfather, and that the complainant was sad when she told Clark the secret. Clark then told her mother the secret, so that her mother could inform the complainant's mother. Clark also stated that during the summer preceding the assault, appellant had called Clark's house while the complainant was there, and spoke "nasty" and in a sexual nature to the complainant. Clark noted that she thought that the complainant had a crush on appellant's son, who Clark characterized as the complainant's stepbrother.
Houston Police Officer E. Byrd Jr. testified that when he responded to a call at the complainant's house on August 3, 2003, the complainant was "very calm" and was not crying. However, Houston Police Officer Heidi Ruiz stated that when she interviewed the complainant after the assault, the complainant was "upset, angry, [and] fearful." Ruiz noted that there was no "usable" DNA found during the complainant's sexual assault exam. Ruiz stated that when contacted, appellant came to the police station voluntarily to be interviewed, denied committing the assault, and asserted that he had had sex with the complainant's mother earlier in the morning on the day of the assault.
Clifford Mishaw, a pediatrician, testified that, on August 3, 2003, he evaluated the complainant based on an allegation of sexual abuse. Although the complainant's exam was normal, Mishaw expected as much, based on the fact that the complainant knew the perpetrator and that the incident did not involve a physically violent, traumatic assault. However, Mishaw also noted that the exam was consistent with a person who had not been sexually abused.
At the beginning of his testimony, appellant explained that he had been "in trouble with the law before" and had previous criminal convictions for possession of a controlled substance, burglary of a building, burglary of a habitation, possession of marijuana, manslaughter, and delivery of marijuana. Appellant stated that he accompanied DeGar to a bar on the evening of August 2, 2003, before the assault, returned to DeGar's house, had sex with DeGar in DeGar's bedroom, and he and DeGar went to sleep in the living room. Appellant awoke around 7:00 a.m., and DeGar awoke several hours later. Appellant testified that he did not assault the complainant and did not enter her bedroom. Appellant further testified that although he had previously called the complainant at Clark's home, he said that he was "watching out" for the complainant because things were getting "out of control" and that DeGar had asked him to "check" on the complainant. Appellant stated that the complainant had a crush on his son, but he disapproved of any relationship between his son and the complainant because they were "like brother and sister." He also stated that the complainant was dressing inappropriately for her age. Appellant explained that although he had commented that the complainant was getting bigger and "was going to get someone in trouble," he denied ever making any comments of a sexual nature to the complainant.
In his first four issues, appellant argues that the evidence is legally and factually insufficient to support his convictions. We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). The trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).
In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the jury's verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). In performing a factual sufficiency review, we are to give deference to the fact finder's determinations, including the determinations involving the credibility and demeanor of witnesses. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We may not substitute our judgment for the fact-finder's. Watson, 204 S.W.3d at 414-15.
A person commits the offense of aggravated sexual assault of a child4 if the person intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means or causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor, and the child is younger than fourteen years of age. Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), (iii), (2)(B) (Vernon Supp. 2006). Here, the jury found appellant guilty of sexually assaulting the complainant by causing the complainant's sexual organ to contact his sexual organ and also by causing the sexual organ of the complainant to contact his mouth.
Appella...
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