Nos. 14-04-00329-CR, 14-04-00330-CR, 14-04-00331-CR, 14-04-00332-CR, 14-04-00333-CR, 14-04-00334-CR
Memorandum Opinion filed July 12, 2005. DO NOT PUBLISH. Tex.R.App.P.47.2(b).
On Appeal from the 228th District Court Harris County, Texas, Trial Court Cause Nos. 975,997; 975,998; 976,117; 976,118; 976,119; 976,121. Affirmed.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
LESLIE BROCK YATES, Justice.
Appellant Keith D. Smith was convicted of two counts of aggravated assault and four counts of aggravated sexual assault. In eight issues, appellant argues the evidence is legally and factually insufficient to support three of the aggravated sexual assault convictions, the evidence is legally insufficient to support a deadly weapon finding for the aggravated assault convictions, and he received ineffective assistance of counsel. We affirm.
BACKGROUND
On March 29, 2003, appellant lured four girls, N.G., A.H., C.H., and T.L., all under the age of eight, into a row of bushes near an apartment playground where the girls were playing. In the bushes, appellant sexually assaulted all four girls. Two of the girls saw that appellant had a knife, and he told the girls that he would kill them if they told anyone. Two brothers, Chris and Kerry Nobles, passed near the bushes while walking home and saw appellant and the four girls run out of the bushes. Chris Nobles identified the girls as N.G., A.H., C.H., and T.L. When C.H. arrived home, she was bleeding in the vaginal area. Her mother initially suspected a playground injury and took her daughter to the hospital, where C.H. received treatment and was released. Upon arriving home, C.H.'s mother was alerted by the other girls' mothers to what appellant had done. Later that night, all four girls were examined at the Children's Assessment Center ("CAC"), and two of the girls had injuries consistent with vaginal penetration. The girls all indicated that they had been molested by appellant. Appellant was arrested soon thereafter and ultimately convicted by a jury of four counts of aggravated sexual assault and two counts of aggravated assault. The trial judge sentenced appellant to sixty years' imprisonment. This appeal followed. SUFFICIENCY OF THE EVIDENCE
In his second through seventh issues, appellant argues that the evidence is both legally and factually insufficient to support three of the aggravated sexual assault convictions. In his first issue, appellant argues the evidence is legally insufficient to support the deadly weapon finding for his aggravated assault convictions. In evaluating a legal-sufficiency claim attacking a jury's finding of guilt, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). We do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). Rather, we determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Cardenas v. State, 30 S.W.3d 384, 389 (Tex.Crim.App. 2000). In our review, we accord great deference "`to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996) (quoting Jackson, 443 U.S. at 319). We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution. Id. at 133 n. 13. In conducting a factual-sufficiency review of the jury's determination, we do not view the evidence "in the light most favorable to the prosecution." Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). Instead, we view the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We may find the verdict is factually insufficient in two ways. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. Our evaluation should not intrude upon the fact-finder's role as the sole judge of the weight and credibility given to any witness's testimony. Cain, 958 S.W.2d at 407. A.H. In his second and third issues, appellant argues that the evidence is legally and factually insufficient to support the conviction for aggravated sexual assault against A.H. A person commits the offense of aggravated sexual assault if the person "intentionally or knowingly . . . causes the penetration of the anus or sexual organ of a child by any means; . . . and if . . . the victim is younger than 14 years of age." TEX. PEN. CODE ANN. § 22.021 (Vernon Supp. 2004-2005). Appellant argues the record does not support a finding that he penetrated A.H.'s sexual organ with his finger, especially because it is unclear from A.H.'s testimony and outcry statement whether the touching occurred inside or outside of A.H.'s clothes. A.H. was seven years of age at the time of the offense. A.H. testified that appellant touched her "pee-pee hole," which referred to her genitals, while her pants were pulled down. A.H. also demonstrated with dolls, which represented her and appellant, that the male doll touched the sexual organ of the female doll. During cross-examination of A.H., she at one point stated that her pants were still on when appellant touched her and later stated that her pants were only slightly pulled down. However, on redirect, A.H. again stated that her pants were pulled down. Officer Marco Loera of the Houston Police Department interviewed A.H. at the CAC on the night of the assault and testified as to A.H.'s outcry statement. Officer Loera testified that A.H. told him that she was at the CAC to talk about the man who tried to rape her. A.H. told Officer Loera that the man asked her to play the "pull-down-your-pants game" and that the man touched her buttocks and tried to kiss her on the lips. Officer Loera also testified that A.H. told him that the man had only touched her on the outside of her clothes. At the CAC, a nurse practitioner administered exams to all four girls. Dr. Rebecca Giradet, a pediatrician who frequently deals with cases of alleged sexual abuse, reviewed the records of the girls' exams. Dr. Giradet testified that in response to standard questions asked during an examination of a suspected child abuse victim, A.H. said that appellant had touched her privates with his hands, that appellant made her take her panties off, and that it hurt a lot when he touched her. Dr. Giradet testified that A.H.'s genitalia had redness and abrasions and that in Dr. Giradet's opinion, these were the result of a penetrating trauma. Appellant argues that the record does not support a finding that he penetrated A.H.'s sexual organ because of the inconsistencies between the trial testimony of A.H. and Officer Loera. In Villalon v. State, 791 S.W.2d 130, 133-34 (Tex.Crim.App. 1990), the Court of Criminal Appeals held that there is no requirement that a child victim be able to testify to penetration. Further, penetration can be proved by circumstantial evidence. Id. at 133. These rules reflect the important public policy that child victims of violent crimes are not expected to testify with the same clarity or ability as mature and capable adults. Id. at 134. A.H.'s testimony that appellant touched her "pee-pee hole" coupled with Dr. Giradet's testimony that A.H. had suffered a penetrating trauma to her genitalia support a finding that appellant penetrated A.H.'s sexual organ. See Mosley v. State, 141 S.W.3d 816, 823 (Tex.App.-Texarkana 2004, pet. ref'd) (holding evidence established penetration where child victim testified that defendant had touched her outside her clothes but where victim also testified that it hurt when defendant touched her and where medical testimony established victim had injuries resulting from penetration). Viewing the evidence in a light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of aggravated sexual assault against A.H. Viewing the same evidence in a neutral light, we conclude the jury was also rationally justified in finding guilt beyond a reasonable doubt. The evidence is therefore legally and factually sufficient to support appellant's conviction for aggravated sexual assault against A.H. Appellant's second and third issues are overruled. T.L. In his fourth and fifth issues, appellant argues that the evidence is legally and factually insufficient to support the conviction for aggravated sexual assault against T.L. Specifically, appellant contends that the record does not support a finding that he penetrated the sexual organ of T.L. T.L. was six years of age at the time of the offense. T.L. testified that a bad man, whom she later identified as appellant, touched her on her "pee," which referred to her genitals. T.L. also said that her panties were down when she was touched and that it hurt when appellant touched her. Also, N.G. testified that appellant put his finger in T.L.'s "too-too," which referred to T.L.'s genitals. Dr. Giradet testified that when asked who touched her, T.L. responded that nobody touched her. When further asked, "Where did nobody touch you?" T.L. pointed to her genitals and said that it hurt. T.L. had a vaginal discharge that Dr. Giradet said would not have been caused by a penetration, but Dr. Giradet also said that in many abuse cases, there is no physical evidence of abuse. The evidence is sufficient to establish that appellant penetrated T.L.T.L. testified that appellant touched her "pee"; she also stated that it hurt when appellant touched her; and N.G. testified that appellant touched T.L. in her "too-too." See Tinker v. State, 148 S.W.3d 666, 669 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (noting that victim's "testimony alone is sufficient to support the jury's finding that sexual contact or penetration did in fact occur"); Jordan-Maier v. State, 792 S.W.2d 188, 190 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd) ("The testimony of a sexual assault victim alone is sufficient evidence of penetration, even if the victim is a child using unsophisticated language to describe the act."). Viewing the evidence in a light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of aggravated sexual assault against T.L. Viewing the same evidence in a neutral light, we conclude the jury was also rationally justified in finding guilt beyond a reasonable doubt. The evidence is therefore legally and factually sufficient to support appellant's conviction for aggravated sexual assault against T.L. Appellant's fourth and fifth issues are overruled. N.G. In his sixth and seventh issues, appellant argues that the evidence is legally and factually insufficient to support the conviction for aggravated assault against N.G. Appellant again complains that the record does not establish that appellant penetrated N.G.'s sexual organ. N.G. was also under fourteen years of age at the time of the offense. N.G. testified that she was playing with the other girls at the apartment playground when appellant came up and stopped the swing that she was on. N.G. said that appellant "put his finger inside [T.L.'s] too-too," which referred to T.L.'s genitals. N.G. then stated that appellant did that to N.G., too, and that it hurt when appellant touched her. Officer Loera testified that N.G. told him that appellant had touched her "on" her privates, but not "inside." Dr. Giradet testified that N.G. said that appellant touched her on her "too-too" with his hands and that appellant made her take her panties off. N.G. also said during the exam that the touching hurt. Dr. Giradet testified that N.G.'s exam revealed no abrasions, redness, or bruising to her genitalia, but that this did not necessarily indicate that she had not been touched. For the same reasons that the evidence is sufficient to establish that appellant penetrated T.L.'s sexual organ, the evidence, namely N.G.'s testimony that appellant put his finger in T.L.'s "too-too" and that he did it to N.G., too, is also sufficient to establish that appellant penetrated N.G.'s sexual organ. See Tinker, 148 S.W.3d at 669; Jordan-Maier, 792 S.W.2d at 190. Viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of aggravated sexual assault against N.G. Viewing the same evidence in a neutral light, we conclude the jury was also rationally justified in finding guilt beyond a reasonable doubt. The evidence is therefore legally and factually sufficient to support appellant's conviction for aggravated sexual assault against N.G. Appellant's sixth and seventh issues are overruled. Deadly Weapon Finding In his first issue, appellant argues the evidence is legally insufficient to support the deadly weapon finding for his convictions of aggravated assault against A.H. and N.G. The underlying assault with which appellant was charged was threatening both A.H. and N.G. with imminent bodily injury. An assault becomes an aggravated assault when, among other things, the person "uses or exhibits a deadly weapon during the commission of the assault." TEX. PEN. CODE ANN. § 22.02(a)(2) (Vernon Supp. 2004-2005). A "deadly weapon" is "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or . . . anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Id. § 1.07(a)(17). Appellant was charged with using and exhibiting a knife during the commission of the assaults. A.H. testified that during the assault, appellant had a knife in his pocket, that it was brown and silver, and that it was big. N.G. also testified that she saw the brown and black handle of a knife in appellant's pocket. Officer Loera testified that when he interviewed N.G., she told him that appellant had a "scary" knife and that he had threatened to kill her if she told anyone what happened. Officer Loera also said that A.H. told him that appellant said he would kill her if she told anyone what happened. Appellant argues that the evidence is insufficient to establish that the knife was a deadly weapon because there is no testimony establishing that appellant brandished the knife, no testimony as to the size or appearance of the blade, and no testimony establishing the victims' fear of imminent bodily injury or death. However, in McCain v. State, 22 S.W.3d 497 (Tex.Crim.App. 2000), the Court of Criminal Appeals found the evidence to be legally sufficient to establish a knife as a deadly weapon where the victim of a robbery saw the handle of a knife protruding from the assailant's pocket and was worried that he might cut her with it, even though the assailant never used or mentioned the knife during the attack. See id. at 499, 503. In the instant case, the presence of a knife coupled with appellant's threats to kill A.H. and N.G. is legally sufficient evidence for a factfinder to conclude that the "intended use" for the knife was that it be capable of causing death or serious bodily injury. Hence, the evidence is sufficient to establish the knife was a deadly weapon under the circumstances. We must also determine whether appellant "used or exhibited" the knife during the encounter. Because the knife was partially exposed, we find that a factfinder could rationally conclude that the knife was exhibited during appellant's encounter with A.H. and N.G. See id. at 503 (noting that "the factfinder could rationally conclude . . . at least, that [the knife's] presence was used by appellant to instill in the complainant apprehension, reducing the likelihood of resistance during the encounter"). Having found the evidence legally sufficient to support the deadly weapon finding, appellant's first issue is overruled. INEFFECTIVE ASSISTANCE OF COUNSEL
In his eighth issue, appellant argues that he received ineffective assistance of counsel due to his counsel's failure to object when the trial court allegedly commented on the evidence. The standard by which ineffective assistance claims are governed is found in the U.S. Supreme Court's pronouncement in Strickland v. Washington, 466 U.S. 668 (1984). The Court of Criminal Appeals adopted the two-part Strickland test in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). To prove ineffective assistance, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms, and (2) the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 687-96; Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813. To defeat this presumption, "`any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.'" Id. at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996)). Without specific explanations for counsel's decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim. See Bone v. State, 77 S.W.3d 828, 830, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813-14 (noting that when the record contains no explanation for counsel's decisions, an appellate court should be hesitant in deciding whether the "motivation behind counsel's actions" was "of strategic design or the result of negligent conduct"). At the conclusion of N.G.'s testimony, the trial judge said, "All right. You did great. Thank you." Appellant claims that this was an improper comment on the weight of the evidence to which appellant's counsel should have objected. Appellant further contends that he received ineffective assistance due to counsel's failure to object. There is nothing in the record indicating counsel's reason for not objecting to the trial court's comment. Without deciding whether the comment by the court was improper, we find that appellant has failed to overcome the presumption that counsel's actions were the result of reasonable trial strategy. Accordingly, appellant's eighth issue is overruled. The judgment of the trial court is affirmed.