Werner v. State, No. 05-08-01503-CR (Tex. App. 3/9/2010)
| Decision Date | 09 March 2010 |
| Docket Number | No. 05-08-01503-CR.,No. 05-08-01504-CR.,05-08-01503-CR.,05-08-01504-CR. |
| Parties | VINCENT DAVID WERNER, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 416-82024-05 and 416-82025-05.
AFFIRMED.
Before Justices FITZGERALD, MURPHY, and MYERS.
Vincent David Werner was convicted of aggravated sexual assault, sexual assault, and three counts of indecency with a child. In four issues, he alleges the State violated his right to a fair trial, ineffective assistance of counsel, legal and factual insufficiency, and that the trial court erred in failing to grant a mistrial. We affirm the trial court's judgments.
In 1994, appellant married Mother, the mother of the two complainants in this case, JG and her younger sister JS.1 JG and JS were both very young when appellant married Mother, and for most of their lives appellant was their only father figure. They loved appellant, considered him their father, and believed they got along better with him than their mother because he was "easier to talk to."
Beginning when JG was "around" fourteen years old, however, she began to feel uncomfortable about some of appellant's actions. He would tell her that he "wanted to check tan lines," and then would move JG's blouse and bra to look at her exposed breasts. Sometimes he would pull down her pants, push aside her underwear, and look at her vagina. JG said she found this behavior "weird and awkward and uncomfortable."
Over time, appellant's behavior gradually progressed from simply looking at JG's breasts and vagina to actually touching them. JG said she could not remember the first time that this happened, but she recalled several incidents. On one occasion, appellant entered her room while she was getting ready for a homecoming dance, pulled the top of her dress down, and rubbed her breasts with his hand. When she protested that this felt awkward and tried to pull away, he told her he was "just checking." When touching JG's breasts, appellant often said that he was "just checking your tan lines" or that he "just need[ed] to make sure everything's okay." JG also recalled that appellant would often enter her bedroom at night, after Mother was asleep, and sit down on the bed next to her. He would then "start touching" either her breasts or her vagina.
JG testified that she was sixteen years old when appellant first touched her vagina. She was in the kitchen making dinner, and appellant came up behind her and told her he was "going to finger me because I had never been fingered before, and he wanted me to know how it felt." He then slid his hand through the back of her pants and underwear and inserted his fingers into her vagina. When he pulled his hand out of her pants, JG went into the living room. A few minutes later, appellant followed her into the living room, walked up behind her, and again inserted his fingers into her vagina.
Appellant would often interrupt JG after she had taken a shower and pull away her towel to look at her breasts. JG remembered this made her feel "[g]ross, awkward, uncomfortable." On one occasion, appellant entered the bathroom while JG was taking a shower with her boyfriend, and JG subsequently admitted to appellant she had had sex with her boyfriend. Later that day, appellant went to JG's room as she was doing her homework and told her "that he was going to show me my G spot, because he had found out that I was having sex . . . ." Appellant told her he needed to show her where her "G spot" was, and he inserted his fingers into her vagina.
Later, when JG thought she was developing a vaginal infection, she asked appellant to schedule a doctor's appointment for her. She did not talk to her mother about this because she was afraid her mother would find out she was having sex. Appellant initially told JG he would schedule the appointment, but later told her he could not make the appointment without Mother finding out, and he purchased some Vagisil for JG instead. A few days later, he told her he "needed to check down there to make sure that everything was okay." He pulled her shorts down, ripping off the top button as he did so, and "looked and touched" her vagina. On another occasion, JG was assisting appellant in his woodworking shop when he came up behind her and inserted his fingers into her vagina.
Like her older sister, JS could not remember when appellant first touched her inappropriately, but she recalled that appellant touched her breasts several times and her "vaginal area" once, beginning when she was eleven or twelve years old. On one occasion, she was sitting in front of the computer when appellant walked up behind her and started scratching her back underneath her shirt. According to JS, this was something appellant did quite often. On this occasion, however, he unfastened her bra and started rubbing her breasts. On a separate occasion, appellant walked into JS's room after she had gone to bed. After turning on the light, he sat on the bed and said either, "Oh, let me see your tan lines," or, "You have good tan lines." He then pulled down her shirt and touched her breasts with his hands.
On another occasion, when JS was twelve or thirteen years old, she complained to appellant that her leg was hurting. Appellant told her lie down and started massaging her leg, but he then moved aside her underwear and started touching her vagina with one hand while massaging her leg with the other. JS told appellant, "Dad, that hurts." She described the pain as similar to "putting a tampon in wrong," and testified that she felt the pain "inside of [her]." She was not sure what to do, so when she heard the dog barking she told appellant she had to "go let the dog in," and she got up and left the room.
In August 2004, just a few months before her seventeenth birthday, JG started attending Plano East Senior High School. As she made new friends and became more independent, her feelings about appellant changed and she "really started to see things differently." She knew she would be able to "get out" of the house when she turned eighteen, but she worried that her sister JS "would still be there." She eventually told a friend, Jennifer,2 about what happened, and Jennifer urged her to tell her mother about the abuse. JG, however, was afraid to tell Mother about the abuse.
On Wednesday of the following week, Mother confronted JG and said, "You're acting funny, and something is wrong with you . . and I don't know how to help you if you can't talk to me." It was then, according to JG's testimony, that she first told her mother about the abuse. JG testified that Mother looked "awful" when she reported appellant's abuse, and that she started to cry. She called JG a liar. Mother later testified that she believed JG was lying "because the man that I thought I was married to couldn't have done that." When Mother accused her of lying, JG defended herself by saying, JG then ended the conversation and went to her room because Mother told her that "she needed a couple of minutes to think." After going to her room, JG told JS that she had just told their mother "what had happened." JS became upset and started crying, claiming their family would be torn apart. Mother then walked in and told the girls to pull themselves together because appellant would soon be home, but that he was going to visit his "hunting lease" the next day. She told them they should try to "just make it through tonight," and that they could "figure all this out tomorrow."
When JS and JG went to church later that night, they both "broke down" and started crying. Their youth pastor3 saw the complainants crying and asked them "what was going on." JG testified that she told their pastor "what was happening," but that she also told him not to tell anyone about it because her mother "
At school the next day, September 2, 2004, JG started crying during an Algebra class and subsequently told her teacher, Christine Tickner, about the abuse. Tickner referred JG to the assistant principal, who contacted Child Protective Services (CPS). CPS took JS, JG, and their brother JO to the Children's Advocacy Center for forensic interviews. The forensic interviews of the girls were videotaped.4
CPS forensic interviewer Michelle Schuback testified that JG's demeanor was "[s]omewhat serious, but forthcoming," and that JS was more reserved. Schuback claimed both complainants used demonstrations to illustrate their allegations. She explained that this was significant because it indicated they were relating what actually happened to them rather than "regurgitating a story." They were also able to "loop" their stories, or explain details even if interrupted or asked to skip around to different points in time, which Schuback said was another indication they were not merely "regurgitating." After the forensic interviews, the Plano police attempted to schedule a sexual assault nurse exam (SANE) for JS and JG, but Mother refused to allow the examination. JG testified that she would not have told anyone at school about the abuse had she known they would contact CPS, because Mother told her "not to get anyone involved." Although appellant moved out of the house shortly after the complainants' forensic interviews, JG testified that life at home "was awful, awful, awful" because Mother did not believe their outcry. JG and JS both claimed Mother often called them liars and asked if they were, in JS's words, "making it up." JS further alleged that Mother offered to purchase new clothes for her if she recanted her allegations. JS said that she became "fed up" with the pressure and eventually recanted, but she...
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