EDDIE SMITH v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Francis

Following a bench trial, the trial court found Eddie Smith guilty of two charges of aggravated sexual assault of a child under the age of fourteen and sentenced him to concurrent thirty-five-year prison terms.   The trial court also imposed a $2000 fine in each case but said the fines would be discharged by time served.   In two issues, appellant contends the evidence is insufficient to support his convictions and also seeks to vacate a garnishment order.   We affirm.

In 2008, B.B. lived in an apartment with his mother, two sisters, cousin, and appellant.   B.B., who is mentally challenged, was twelve years old and attended school at Mesquite Academy.   School officials testified they noticed a change in B.B., beginning in February.   B.B. “looked a mess” and complained that he was not getting sleep.   Over the next couple of months, B.B. complained of headaches, stomach pains, nausea, vomiting and pain in his private parts and “butt.”   B.B. could not sit and was in obvious pain.   Several times, his teachers referred him to the school nurse, who reported the complaints to B.B.'s mother and suggested B.B. see a doctor.   Although his mother reported she took B.B. to the doctor, the nurse said she had no indication that any doctor addressed the issues of anal pain.

One morning in April, when B.B. got up from his chair at school, his teacher noticed an odor and a “kind of clear substance” where he had been seated.   B.B. also had a wet spot on the seat of his pants.   Although the teacher asked B.B. if something had happened to him, B.B. gave no indication of abuse.   After a second similar incident one week later, B.B. told school officials that “Uncle Eddie had done him in the butt” and the abuse had been ongoing.   B.B. also said that his older brother had sexually assaulted him.  (At the time of trial, B.B.'s brother was incarcerated in TYC for sexually abusing B.B.) School officials notified Child Protective Services, but B.B. was not immediately removed from the home.   One week later, B.B. told school authorities appellant had sexually abused him again.   The police were notified, and appellant was arrested.   A few days later, B.B. was removed from the home after he went to school and appeared to have been beaten.

At trial, B.B. testified about two instances where appellant assaulted him near the trash dumpsters at the apartment complex where they lived.   Both occurred on days he went to school.   In the first incident, B.B. walked to the store with appellant at night.   When they returned to the apartment complex, B.B. said he and appellant went behind “the gate,” where appellant pushed him to the ground, covered his mouth with his hand, pulled down B.B.'s pants and underwear, and “put his private part in my butt.”   B.B. explained that a “private part” is used to “pee” and said the assault “hurt real bad.”   He tried to push appellant off of him, but appellant was too big and hit him.   After the assault, he went to his apartment but did not tell anyone.

On a second occasion, B.B. said he and appellant were taking trash to the dumpster during the day.   Again, appellant pushed him to the ground behind the dumpster, covered his mouth, pulled down his pants, and “put his private part in my butt.”   B.B. said “white stuff” came out of appellant's private part.   B.B. said he did not tell his mother about the assaults because he was worried that appellant would hit him if he told.

To discredit appellant's allegations, the defense focused a portion of its cross-examination on whether there were any gates at the apartment complex.   Evidence showed the complex was surrounded on three sides by a fence, but there were no gates.   B.B. had referred to a gate in his testimony, but later explained, using drawing of the complex, where the assaults occurred and what he meant by gate.

Additionally, B.B. acknowledged he had been in trouble before for “sneaking” beer from a store.   When appellant tried to discipline him by “giving him warnings and stuff,” B.B. admitted it made him mad but he denied ever threatening to get even with appellant.

Appellant took the stand and denied sexually assaulting B.B. He also testified he “whipped” B.B. a couple of times and threatened him “a lot of times” for taking beer and cigarettes.   He also said he was never left alone at home with B.B., although he acknowledged he and B.B. had walked to the store together and he had helped B.B. take out the trash on occasion.

In his first issue, appellant contends the evidence is factually insufficient to support his conviction.   We will consider this issue under the legal sufficiency standard outlined in Jackson v. Virginia, 443 U.S. 307 (1979), and examine the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Brooks v. State, 323 S.W.3d 893, 894-900 (Tex.Crim.App.2010).   We defer to the fact finder's determinations of the witnesses' credibility and the weight to be given their testimony because the fact finder is the sole judge of those matters.  Id. at 899-900;  Laster v. State, 275 S.W.3d 512, 517-18 (Tex.Crim.App.2009).

According to each indictment, the State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly caused the contact and penetration of the anus of the B.B., a child younger than fourteen years of age and who was not then the spouse of appellant, by appellant's sexual organ.   See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (West Supp.2010).   The testimony of a child victim alone is sufficient to support a conviction.   See Tex.Code Crim. Proc. Ann. art. 38.07 (West 2005);  Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd).

Appellant argues the evidence was insufficient to support his convictions because B.B. “demonstrated propensity for dishonesty” by stealing beer and cigarettes;  was mentally ill as evidenced by his medical records showing a diagnosis of bipolar disorder;  had a motive to falsely accuse appellant because appellant had attempted to discipline him for stealing beer and cigarettes;  had been sexually assaulted by his brother during the same time period;  and was “initially unwilling to specify who had assaulted him, saying only that ‘he took advantage of me’ and ‘he used me.’ ”   Finally, relying on testimony concerning the “gate,” appellant asserts B.B.'s testimony was “confused and equivocal.”

The gist of appellant's complaints is that B.B. was not a credible witness.   Whether B.B.'s account of what happened was colored by his prior relationship with appellant, his abuse by his older brother, and/or his mental capacity was for the trier of fact (in this case, the trial judge) to consider in determining whether B.B. was credible.   And here, after hearing all of the evidence, the trial judge specifically stated on the record that he found B.B. to be “credible.”   B.B. testified appellant anally assaulted him and provided details of two such assaults.   B.B.'s testimony was corroborated by school officials, who testified that B.B. began having medical issues at school, including complaints that his “butt hurt,” and that twice when B.B. stood up, he left an odorous “clear substance” in his chair and a “wet spot” on the seat of his pants.   B.B. identified “Uncle Eddie” as his assailant to multiple school officials.   Having reviewed the evidence in the light most favorable to the judgment, we conclude the trial court could have rationally found each element of the offense beyond a reasonable doubt.   We overrule the first issue.

In his second issue, appellant argues the trial court improperly issued an order to garnish appellant's inmate trust account in cause number 05-10-00056-CR.   He argues the order is not supported by the record and must be vacated.   Our record includes an order of the trial court withdrawing the garnishment order;  consequently, the issue is moot.

We affirm the trial court's judgments.

MOLLY FRANCIS JUSTICE