DYRIAN KEITH STRONG v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Richter

A jury convicted appellant of aggravated sexual assault of a child under fourteen years of age and assessed punishment at ten years' imprisonment.   In two issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction.   Concluding appellant's arguments are without merit, we affirm the trial court's judgment.

Standard of Review

The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.   See Brooks v. State, 323 S.W.3d 893, 894–95 (Tex.Crim.App.2010) (plurality op.).   This standard requires the reviewing court to determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt.  Id. at 899 (citing Jackson v. Virginia, 443 U.S. at 319).   We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters.  Id. Therefore, we will conduct a single review of appellant's sufficiency complaints under the Jackson standard.

Discussion

Appellant contends the evidence is insufficient to support his conviction because there is “no more than a modicum of evidence from which [a] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”   Appellant further challenges the sufficiency of the evidence because there is no evidence to corroborate the victim's accusation.   The State responds that the evidence was sufficient and corroboration was not required.   We agree with the State.

A person commits aggravated sexual assault if he knowingly or intentionally causes the sexual organ of a child younger than fourteen years of age to contact or penetrate the sexual organ of another person, including the actor.   See Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii) (West Supp.2010).   The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault of a child.   See Tex.Code Crim. Proc. Ann. art. 38.07 (West 2005);  Lee v. State, 186 S.W.3d 649, 655 (Tex.App.—Dallas 2006, pet. ref'd).

Here, DP, the victim, was eleven years' old at the time of the assault.   On the day in question, DP attended a family funeral, ate dinner at her grandmother's house, and then went to her Aunt Vickie's house to spend some time with her cousins Natalie and Tiffany.   Aunt Vickie is married to Uncle Keith, the appellant.

DP fell asleep on the couch, and when she awakened, discovered that everyone but appellant had left the house.   Appellant called DP into his room and told her to close the door.   When appellant told DP that he wanted a kiss, DP refused and told him he was too old.   DP tried to back out of the room, and appellant stated that she was always flirting and flaunting in front of him, and pushed her on the bed.

Once DP was on the bed, appellant tried to take her pants off.   DP was kicking and telling appellant “no,” but appellant pulled her pants down.   Appellant told DP to stop screaming and grabbed her hands.   Appellant then had intercourse with DP;  DP said that appellant's penis touched and went into her vagina and she felt pain.   According to DP, appellant's body moved back and forth and appellant was “moaning and stuff.”   DP stated that the last thing she remembered was telling appellant to stop, and then she started to black in and out.

When DP awakened, she had only her shirt on and was on the side of the bed, with her feet and half her body under the bed.   DP did not know how she got there, and she did not see appellant.   About this time, DP's aunt returned.   DP said she thought her aunt noticed she was just wearing a shirt, but when she tried to tell her aunt what had happened she would not listen.   Because she was bleeding, DP told her aunt she thought she had just “started her cycle.”   DP tried to tell her aunt that someone had done something to her that was not right, but her aunt just told her to wipe herself off and they would talk later.

DP went into her cousin Tiffany's room and fell asleep.   When she awakened, she asked her aunt to take her home.   During the ride home, DP tried to tell her aunt what had happened but did not mention her uncle's name because she did not think her aunt would believe her.

On her twelfth birthday, DP told her mother about what had happened.   DP said she told her mother because she was having blackouts and fainting at school, and was having nightmares.   According to DP, she did not tell her mother previously because her uncle called her one night and told DP she should not tell or he would hurt her mother.   DP's mother told DP's grandmother and they went to the hospital and spoke to the police.   DP was examined by a physician and gave a forensic interview.   In addition to DP's testimony at trial, the jury also viewed her videotaped forensic interview.¹

During trial, DP admitted that she told her cousin Tiffany the incident did not occur, but that was not the truth.   DP said that she lied because Tiffany started talking to her again, and all DP wanted was for her cousins to talk to her again.

DP's mother, Tammy, testified that DP told her appellant had sex with her, and DP confirmed this meant “intercourse.”   DP's mother also testified that after the funeral dinner, DP went home with Vickie and her family.   Tammy also testified that DP gave her fifty dollars, and when she asked how DP had acquired it, DP said appellant had given it to her.

Dr. Matthew Cox, an assistant professor in the pediatrics department at the University of Texas Southwestern Medical School testified about medical examinations of children who have been sexually abused.   Dr. Cox stated that Dr. Reismond conducted a sexual assault examination of DP, and her examination was normal.   According to Dr. Cox, a normal exam is typical, and does not mean sexual abuse did not occur.   Dr. Cox explained that there are several myths about the type of evidence that might be present in a sexual assault examination.   The first myth is that a doctor should be able to see what happened, but this is frequently not true.   The second myth is that there should be physical evidence on the patient.   But, in “most” sexual assault cases, there is no physical evidence of abuse, especially beyond twenty four hours of an assault.

Dr. Ashley Lynn, senior director of clinical services at the Dallas Children's Advocacy Center, did not work on DP's case, but testified generally about sexual abuse of children.   Dr. Lynn testified that a delayed outcry is when the child does not tell anyone about the abuse immediately after it occurs.   According to Dr. Lynn, seventy-five percent of children who have been abused do not tell someone within the first year.   Dr. Lynn also explained the process of “grooming”—the process an adult uses to gain a child's trust when he wants to get sexually involved with the child.   Grooming could involve money, and money and gifts could be used to keep the child from telling anyone about the abuse.   Dr. Lynn also testified that children have no idea of the ramifications of an outcry.   Once the child begins to realize the long-term implications, it becomes very scary to them, and sometimes the child wishes she could just take it back.   Finally, Dr. Lynn testified that inconsistencies in testimony are common in sexual assault cases.   It is difficult for a child to discuss the abuse in the presence of the offender and it is “very difficult for a child in a courtroom.”   Thus, a child's description of the abuse will vary based upon “how they're perceiving their environment, whether it feels safe and secure, whether it feels scary.”

Appellant argues that the incriminating evidence is greatly outweighed by contrary proof because his wife and children contradicted portions of DP's testimony and testified that DP had a reputation for untruthfulness.   Appellant further asserts that because there were some inconsistences between DP's initial forensic interview and her trial testimony three years later, DP is a “liar.”   But the jury, as the sole judge of all of the testimony, including DP's, was free to accept or reject it.   See Lee, 186 S.W.3d at 655.   Viewing the evidence under the appropriate standard, on this record, we cannot conclude the evidence was insufficient to support appellant's conviction.   Appellant's issues are overruled and the judgment of the trial court is affirmed.

FOOTNOTES

FN1. The videotape was admitted for impeachment purposes only.   In the videotape, DP stated her shirt was ripped when she was pushed onto the bed.   She said that when she woke up, someone had stuffed her under the bed and she had no clothes on, and her aunt came in while she was getting dressed.   DP stated the incident occurred the day before the funeral, but later stated the incident occurred before the day after the funeral.   DP also stated the first adult she told was a friend's grandmother..  FN1. The videotape was admitted for impeachment purposes only.   In the videotape, DP stated her shirt was ripped when she was pushed onto the bed.   She said that when she woke up, someone had stuffed her under the bed and she had no clothes on, and her aunt came in while she was getting dressed.   DP stated the incident occurred the day before the funeral, but later stated the incident occurred before the day after the funeral.   DP also stated the first adult she told was a friend's grandmother.

MARTIN RICHTER JUSTICE