Alahmadyv.State

Court of Appeals of Texas, Fifth District, DallasFeb 22, 2007
Nos. 05-06-00496-CR, No. 05-06-00497-CR (Tex. App. Feb. 22, 2007)

Nos. 05-06-00496-CR, No. 05-06-00497-CR

February 22, 2007. DO NOT PUBLISH.

On Appeal from the Criminal District Court No. 7 Dallas County, Texas, Trial Court Cause Nos. F04-36182-RHY, F04-36185-RHY.

Before JUSTICES MOSELEY, BRIDGES, and RICHTER. Opinion By JUSTICE BRIDGES.


OPINION


DAVID L. BRIDGES, JUSTICE.

Ajury convicted Fouad Saeed Alahmady of two counts of sexual assault of a child, assessed punishment at five and fifteen years' imprisonment, and assessed a $10,000 fine in each case. In four points of error, appellant contends the sentences constitute cruel and unusual punishment and the evidence is factually insufficient to support the convictions. We affirm.

Cruel and Unusual Punishment

In his first two points of error, appellant argues the jury imposed grossly disproportionate sentences in violation of the United States and Texas Constitutions. See U.S. Const. Amend. VIII, XIV; Tex. Const. art. 1, § 13. Appellant asserts the jury was unduly swayed by the State's argument that appellant would be deported without facing any consequences if he received probation. The State responds that appellant did not preserve his complaints for appellate review and, alternatively, the sentences do not violate the United States or Texas Constitution. Appellant did not complain about the sentences either at the time they were imposed or in his motions for new trial. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Castaneda, 135 S.W.3d at 723. Because appellant has not preserved his complaints, we overrule his first two points of error.

Factual Insufficiency

In his third and fourth points of error, appellant argues the evidence is factually insufficient to support the convictions because the complainant's testimony was ambiguous, doubtful, and not credible. The State responds that the evidence is factually sufficient to support the convictions.

Background

H.S., the complainant, testified that when she was in the fifth grade, she began living with her grandmother and her grandmother's youngest son, whom she called "Uncle Minh." Appellant, who was married to her "Aunt Li," lived in the apartment next door to the grandmother's apartment in Dallas. Because the grandmother worked and appellant was home during the day, appellant often took H.S. and her cousin to school. H.S. sometimes went next door to appellant's apartment in the morning, then appellant would drive her to school. One day as H.S. was looking in a mirror in appellant's apartment before going to school, appellant walked up behind her and grabbed one of her breasts. H.S. was thirteen years old at the time. A few months later, appellant sexually assaulted H.S. H.S. could not recall the actual date the first sexual assault occurred, but she testified she and appellant were alone in the grandmother's apartment. Appellant began touching H.S., then he pushed H.S. on the edge of the grandmother's bed, unzipped his pants, put on a condom, and inserted his penis into H.S.'s vagina. H.S. bit and scratched appellant, but he did not stop. H.S. did not tell anyone what appellant had done because appellant told her not to tell. Appellant always wore a condom when he had sexual intercourse with H.S., which occurred repeatedly over the course of one and a half years. H.S. testified she stopped resisting and "became numb to it." At the end of her eighth-grade year, H.S. moved to her mother's house in Irving so she could attend another school, which was across the street from the mother's house. H.S.'s mother and Aunt Li are twin sisters. Sometimes when H.S.'s mother was not available, she would have appellant give H.S. a ride to the grandmother's house or other places. On several occasions, appellant would call H.S. on her cell phone and tell her to meet him in front of the school. Appellant would pick up H.S. and have sexual intercourse with her at various places, including her grandmother's Dallas apartment, appellant's Dallas apartment, a hotel, appellant's vehicle, and apartment in Irving near her school. H.S. testified she was afraid to not go with appellant. On one occasion while she and appellant were moving a desk from the grandmother's apartment in Dallas, appellant stopped in Irving near where several ice cream trucks were parked and had sexual intercourse with H.S. inside his vehicle. H.S. testified the last sexual assault occurred on October 19, 2004. Appellant called her on her cell phone and said he would pick her up at school. Appellant drove her to an unfurnished apartment near the high school. Appellant told H.S. he got the apartment to be closer to her. Appellant used a pastel comforter for them to lay on, then he inserted a blue dildo with pink studs and his penis into H.S.'s vagina. Afterwards, appellant drove H.S. back to the school and she walked home. The next day, H.S. told her school counselor that appellant had been having sexual intercourse with her. The police were contacted and H.S. had a forensic interview. After H.S. talked with a detective, she showed him the locations where appellant had sexually assaulted her. H.S. testified no one but appellant has ever had sex with her, and her Uncle Minh has never touched her or sexually abused her. H.S. testified that before the first time appellant sexually assaulted her, he accused her of having sex with Uncle Minh, then throughout the sexual abuse appellant often accused her of having sex with Uncle Minh. Appellant also threatened H.S. that if she told anyone about what appellant was doing to her, he would say Uncle Minh was having sex with H.S. Dr. Matthew Cox testified that on October 22, 2004, he performed a physical examination on H.S., three days after the last sexual contact with the abuser. H.S. told Cox she had sexual intercourse with "her uncle" and no one else. During the genital exam, Cox noted two areas of H.S.'s hymen that had been torn, as well as genital warts on the inside of the labia. The warts were caused by human papilloma virus, which is a sexually transmitted disease that has no cure. Cox testified the virus remains for the rest of an infected person's lifetime, is one of the causes of cervical cancer, and can still be transferred even if the actor wears a condom. Detective Samuel Todd observed H.S.'s videotaped forensic interview on October 20, 2004, the same day as her outcry to the school counselor. Based upon that interview, Todd obtained an arrest warrant for appellant. After the interview, Todd drove H.S. around the city to verify the locations she talked about in her statement. H.S. directed Todd to an apartment in Irving as the location of the final sexual assault. H.S. directed Todd to a hotel near Texas Stadium, and a location in the 800 block of Allen Street where Yummy ice cream trucks are parked. On October 21, 2004, Todd stopped appellant's vehicle as it left the parking lot of appellant's Dallas apartment. When Todd searched appellant's vehicle, he found a visitor's pass to H.S.'s high school in the center console, condoms in the glove compartment, a black trash bag with a pastel comforter inside, and a white sack that contained a blue dildo with pink nodules on it. After finding the items, Todd arrested appellant and took a cell phone that was clipped to appellant's belt. The cell phone's phonebook listed H.S.'s telephone number as "speed dial number one." Quang Minh Nguyen testified H.S. is the daughter of his older sister. Minh lived in the same apartment with H.S. for three years, and appellant lived next door to them. Appellant often took H.S. and her cousin to school because Minh went to work in the early mornings. Minh testified he had a close relationship with H.S. They went shopping and movies together, along with H.S.'s cousin. H.S. never told Minh about the sexual abuse by appellant or that appellant was going to "get Minh into trouble." Minh testified H.S. and appellant appeared to have a "normal uncle and niece relationship." Minh also testified he never touched H.S. in an inappropriate manner. Appellant did not testify during the trial.

Applicable Law

In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); see also Marshall v. State, No. AP-75048, 2006 WL 3733198, *5 (Tex.Crim.App. Dec. 20, 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). To obtain convictions for sexual assault of a child, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the penetration of the sexual organ of H.S., a child younger than seventeen years and not appellant's spouse, by any means. See Tex. Pen. Code Ann. § 22.011(a)(2)(A) (Vernon Supp. 2006). The testimony of a child victim alone is sufficient to support a conviction for sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd).

Discussion

Appellant specifically argues the evidence is factually insufficient because (1) no testimony other than H.S.'s supports the allegations, (2) H.S. did not tell anyone until it had been going on for a long time, and (3) H.S. had to be "prodded" to give specific details of the alleged sexual assaults. H.S. testified about several specific occasions when appellant inserted his penis into her vagina, beginning when she was about thirteen years old. H.S. described the locations of the sexual assaults, and testified appellant would call her on her cell phone and tell her to meet him in front of the school. H.S. described one sexual assault occurring where there were parked ice cream trucks, and showed the location to Todd. H.S. also was able to show Todd the apartment in Irving that appellant took her to have sex and the location of a hotel near Texas Stadium. H.S. testified that appellant inserted a blue dildo with pink studs on it into her vagina on the last time the sexual assault occurred. When Todd searched appellant's car one day after H.S.'s outcry, he found a sack that contained a blue dildo with pink nodules on it and a visitor's pass to H.S.'s high school. H.S. testified appellant was the only uncle that had sexual intercourse with her, and Minh testified he never touched H.S. in an inappropriate manner. It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 9. The jury was free to accept or reject any and all of the evidence presented by either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). We may not substitute our own determination for that of the jury. Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Viewing the evidence under the proper standard, we conclude it is factually sufficient to support appellant's convictions for sexual assault of a child. See Watson, 204 S.W.3d at 415; Tear, 74 S.W.3d at 560. We overrule appellant's third and fourth points of error. We affirm the trial court's judgment in each case.