No. 10-03-00134-CR
Opinion delivered and filed November 10, 2004. DO NOT PUBLISH.
Appeal from the 54th District Court, McLennan County, Texas, Trial Court # 2002-159-C. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA
BILL VANCE, Justice.
Appellant, Michael Antonio Johnson, was charged by indictment with multiple counts of felony aggravated sexual assault. He was convicted by a jury on four counts. The jury assessed punishment of ten years' confinement on three of those counts, and twenty years' confinement on the other count. The trial court "stacked" the twenty-year sentence, stating it would begin when the ten-year sentences had been discharged. Johnson brings the following issues on appeal: (1) the evidence was legally and factually insufficient to establish that Johnson penetrated the victim's sexual organ with his sexual organ; (2) the evidence was legally and factually insufficient to establish that Johnson penetrated the victim's anus with his sexual organ; (3) the evidence was legally and factually insufficient to establish that Johnson penetrated the victim's anus with his finger; and (4) the trial court erred in admitting the victim's testimony. We will overrule the issues and affirm the judgment.
BACKGROUND
Johnson was charged with five counts of sexual assault based on one incident, alleged to have occurred on or about August 2, 2001. Johnson occasionally stayed at the home where the victim lived with her mother and father. The victim, who was seven years old at the time of the incident and eight years old at the time of her testimony, testified that one night she was sleeping on a couch in the living room and Johnson was sleeping on another couch. She testified that he got on top of her, that she felt his penis on her leg, that he put his penis in her mouth, that he rubbed her "private" with his finger, that he put his hand on her behind, and that he put his penis in her "butt." Legal and Factual Insufficiency
When reviewing the legal sufficiency of the evidence, we view all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 199 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). We review factual sufficiency by considering all of the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. April 21, 2004). Johnson argues that the evidence was legally and factually insufficient to establish Johnson penetrated the victim's sexual organ with his sexual organ. Johnson argues that there was no direct testimony that Johnson's penis penetrated the victim's vagina. We first note that neither the charge nor the statute require the state to prove penetration. It is sufficient for a conviction under section 22.021 that the defendant caused the sexual organ of a child to contact the sexual organ of the defendant. See TEX. PEN. CODE ANN. § 22.021 (Vernon Supp. 2004). The uncorroborated testimony of a child victim is sufficient to support a conviction for aggravated sexual assault. See Tex. Code Crim. Proc. Ann. art 38.07 (Vernon Supp. 2004). The victim made a drawing during an interview in which she drew an arrow from Johnson's penis to her "private." The victim testified that she felt his penis on her "private" and she pointed to the vaginal area on a doll. There was medical testimony that the victim's hymen was thin, which was characterized as suspicious (but not conclusive of sexual assault having occurred). Johnson also argues that the evidence was legally and factually insufficient to establish Johnson penetrated the victim's anus with his sexual organ. We again note that the statute and the charge do not require proof of penetration and that a finding that Johnson caused the victim's anus to contact his sexual organ would support a conviction under section 22.021. See TEX. PEN. CODE ANN. § 22.021. The victim made a drawing during an interview on which she wrote "his penes went in my buhinne" and she testified that meant "his penis went in my butt." She testified that it hurt her behind "around and inside." Considering all of the evidence in the light most favorable to the verdict, we cannot say the jury was irrational in finding beyond a reasonable doubt that Johnson caused the victim's sexual organ and anus to contact or be penetrated by his sexual organ. Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89. The evidence is legally sufficient. Considering all of the evidence in a neutral light, we cannot say the jury was not rationally justified in finding that Johnson caused the victim's sexual organ and anus to contact or be penetrated by his sexual organ. Zuniga, 2004 WL 840786, at *7. The evidence is factually sufficient. Johnson also argues that the evidence was legally and factually insufficient to establish that Johnson penetrated the victim's anus with his finger. We presume that is the reason the jury returned a verdict of not guilty on that count. Because Johnson was found not guilty of penetrating the victim's anus with his finger, we need not consider this issue. We overrule all of Johnson's factual and legal sufficiency issues. Victim's Testimony
Johnson argues that the trial court erred by denying Johnson's motion to prevent the victim from testifying. Prior to trial, Johnson filed a motion for an "identification hearing" and the motion was granted. Johnson urges us to consider this pretrial hearing as a "taint" hearing and would have us follow the test for determining the reliability of a child witness' pretrial statements and in-court testimony set forth by the New Jersey Supreme Court in State v. Michaels. 642 A.2d 1372 (N.J. 1994). In Michaels, the New Jersey court recognized that "the use of highly suggestive interrogation techniques can create a significant risk that the interrogation itself will distort the child's recollection of events, thereby undermining the reliability of the statements and subsequent testimony concerning such events." Id. at 1379. The court stated that the concern with the reliability of statements resulting from suggestive or coercive interview techniques implicates "principles of due process." Id. at 1380. The court placed the initial burden to trigger a pretrial taint hearing on the defendant, who must make a showing of "some evidence" that the victim's statements were the product of suggestive or coercive interview techniques. Once the defendant establishes sufficient evidence of unreliability of statements at the pretrial hearing, the burden shifts to the state to prove reliability of proffered statements and testimony by clear and convincing evidence. Id. at 1383. Johnson presented an expert witness that testified at the hearing that it was improper for the interviewer to bring up Johnson's name during the forensic interview in which the child victim initially made her allegation of sexual abuse. The expert also stated that the interview went on for too long, that many of the questions were leading, that the questions were closed rather than open, that the questioning was one-sided, and that the child was given improper incentives. The expert concluded that as a result there was no way to be sure whether the child's later statements concerned actual events or things suggested to her during the interview. At the conclusion of the hearing, the trial court found that the "identification procedure" was "unduly suggestive," but that the victim's testimony was still reliable. Johnson argues that he therefore met his threshold burden to show unreliability and the state failed to meet its burden to prove by clear and convincing evidence that the victim's statements were sufficiently reliable to be admitted. However, Texas has not adopted the rationale of State v. Michaels, and we decline to do so here. The admissibility of the victim's testimony and qualification to be a witness is within the discretion of the trial court. TEX. R. EVID. 104(a). Johnson relies almost exclusively on State v. Michaels and presents no other argument that the trial court abused its discretion in admitting the victim's testimony. We overrule the issue. CONCLUSION
Having overruled the issues, we affirm the judgment.