Vernon v. State

• Decision Date: 21 August 1991
• Docket Number: No. 2-90-191-CR,2-90-191-CR
• Citation: 814 S.W.2d 845
• Parties: Donald VERNON, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 845

814 S.W.2d 845

Donald VERNON, Appellant, v. The STATE of Texas, State.

No. 2-90-191-CR.

Court of Appeals of Texas Fort Worth.

Aug. 21, 1991.

Rehearing Overruled Sept. 24, 1991.

Minor & Jester, Tom D. Jester, Jr., Denton, for appellant.

Bruce Isaacks, Dist. Atty., Kathleen A. Walsh, Vicki Foster, Asst. Dist. Attys., Denton, for appellee.

Before FARRIS, MEYERS and DAY, JJ.

OPINION

FARRIS, Justice.

Donald Vernon was convicted for the aggravated sexual assault of a child, his stepdaughter, and sentenced to life in prison. He appeals with three points of error asserting: (1) the evidence was insufficient to prove there was penetration of the sexual organ of his stepdaughter; (2) the trial court erred in allowing into evidence extraneous offenses which allegedly happened years before and a short time after the alleged incident; and (3) the trial court erred in allowing a doctor to testify regarding his examination of the child and in admitting the pictures the doctor took of her. We find the evidence was sufficient to support the conviction, and that the trial court did not abuse its discretion in admitting that evidence of which Vernon complains. The conviction is affirmed.

The indictment alleged that Donald Vernon, in the County of Denton, State of Texas, on or about the 15th day of October, 1989, intentionally and knowingly caused the penetration of the female sexual organ of K___ D___ with his finger. Vernon claims in his first point of error that the evidence was insufficient to prove actual penetration. In our review of the evidence, we must view it in a light most favorable to the verdict. See Blankenship v. State, 780 S.W.2d 198, 207 (Tex.Crim.App.1989). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have believed the element established beyond a reasonable doubt. Id. citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) We hold that such a finding is possible. K___ D___ testified that at the time in question, Vernon took her into the bathroom at their home, told her to pull down her shorts and underwear, and to get up on the bathroom counter. Although she testified that he touched the outside of her vaginal area with his hands, she further testified that she felt some pain, discomfort, and pressing in the vaginal area but could not describe where. K___ D___ was not required to be able to testify as to penetration, as this may be proved by circumstantial evidence. See Nilsson v. State, 477 S.W.2d 592, 595-96 (Tex.Crim.App.1972). Here, the State offered the testimony of Dr. Gerard Balsley who examined K___ D___ on October 27, 1989. He testified to, and pictures were admitted which depicted, a healing laceration within the female sexual organ. He testified that this tear was at least ten to fourteen days old and was consistent with penetration of the sexual organ by a finger. This testimony would relate that injury back to the date alleged in the indictment, October 15, fourteen days prior. As no other evidence was offered that contradicted K___ D___'s or Dr. Balsley's testimony, we hold that a reasonable trier of fact could have found the essential element--penetration--beyond a reasonable doubt. Vernon's first point is overruled.

Vernon next complains that the trial court erred in allowing testimony of extraneous offenses which allegedly occurred years before and a short time after the alleged incident for which he was on trial. Again, we disagree. K___ D___ testified that Vernon fondled her while she was in the second, fourth, fifth, sixth, and ultimately the seventh grades. (Note: K___ D___ did not use the word "fondle," rather she stated that Vernon would kiss her breasts, rub her vaginal area with his hand and sometimes his penis and mouth, and that he would require her to do the same, rub his penis with her hand and mouth.) Nothing happened while she was in the third grade because during that time K___ D___'s mother was separated from Vernon. While these incidents are extraneous to the one alleged in the indictment, they are not extraneous to each other and we will not consider them to be so. The incident that Vernon was charged for did not occur in a vacuum; it was but one point of an ongoing crime against his stepdaughter. Had Vernon instead robbed a bank, evidence of the five years he had spent planning the crime and preparing for it would certainly be admissible; we hold that it is a like concept.

K___ D___'s testimony of the prior occurrences served to place the crime within the proper context and shed light upon this unnatural relationship between her and her stepfather. See Boutwell v. State, 719 S.W.2d 164 (Tex.Crim.App.1985). While the court in Boutwell found that no continuing scheme or plan existed, the facts of this case are significantly different. In Boutwell, there was no familial relationship between Boutwell and the fifteen-year-old complainants, nor was there an ongoing crime against them. There was evidence that the boys voluntarily went to the home of Boutwell or one connected with him and in the past had engaged in consensual intercourse with the appellant's friends. In our case, however, the appellant was K___ D___'s stepfather, who was in a position of authority over her. The incidents began occurring when K___ D___ was seven or eight years old and she did not consent but was threatened by her stepfather. Further, as K___ D___ grew older, Vernon's actions became more involved: paraphrasing K___ D___'s testimony, Vernon started out just touching her vaginal area and breasts with his hand, and then also with his penis and she would have to touch his penis with her hands and mouth; later he would rub her vaginal area with his penis and "play" with her breasts; and as she got older he started kissing her and would "play" around with her vaginal area with his hands, penis, and mouth, and ultimately he caused the action which is the issue here, he penetrated her vaginal area with his fingers. There was evidence that had K___ D___'s mother not found out about the abuse, it would have continued. In Boutwell, the court stated that a series of similar acts are not enough to show a common plan or design; the added element must be such a concurrence of common features that the various acts are naturally to be explained as caused by a...