NO. 12-05-00106-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

EMMETT LEE SIMPSON, SR.,      §                      APPEAL FROM THE 173RD

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION

            Emmett Lee Simpson, Sr. appeals his convictions for aggravated sexual assault and indecency with a child.  In two issues, Appellant contends that the evidence was legally and factually insufficient to support his conviction.  We affirm.

Background

            In 2002, A.S. told her cousin that her father, Appellant, had been sexually assaulting her.  The cousin told her mother, which eventually led to the involvement of the Texas Department of Family and Protective Services and the police.  Appellant was arrested.  While in police custody, he handwrote a statement admitting that he touched A.S. on her “private parts” on July 13, 2002.

            A Henderson County grand jury indicted Appellant, in four separate indictments, for aggravated sexual assault, indecency with a child by contact, and indecency with a child by exposure for incidents alleged to have occurred on or about July 13, 2002 and for aggravated sexual assault of a child and indecency with a child by contact for incidents alleged to have occurred on or about June 1, 2001.  Appellant pleaded not guilty, and all of the offenses were tried together. 

            A.S. was twelve years old at the time of trial.  She testified that her father has been assaulting her since she was three years old.  She had reported to the police when she was five years old that her father was touching her, but she remained in the household and was not separated from him until the report in 2002. 

            The jury found Appellant guilty of all charges and assessed punishment at life in prison for the two aggravated sexual assault charges, twenty years for each of the indecency with a child by contact charges, and five years for the indecency with a child by exposure charge.  The jury did not assess a fine in any of the cases, and the trial court ordered the sentences to be served concurrently. Appellant now appeals his convictions for the aggravated sexual assault and indecency with a child by contact alleged to have occurred in 2001.  He does not appeal the other convictions.

Sufficiency of the Evidence

            Appellant argues that the evidence was legally and factually insufficient to show that he committed the offenses of aggravated sexual assault and indecency with a child.  Specifically, Appellant asserts that the testimony of the victim could not reasonably be believed, that she had given inconsistent accounts, and that there was no physical or other evidence to corroborate her account of the offenses.

Standard of Review–Legal Sufficiency

            Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction.  Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); see also Russeau v. State, 171 S.W.3d 871, 877 (Tex. Crim. App. 2005).  Evidence is legally sufficient if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson, 443 U.S. at 320; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).  The evidence is examined in the light most favorable to the jury’s verdict.  Jackson, 443 U.S. at 320; Johnson, 871 S.W.2d at 186.

            The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge.  See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).  Such a charge would include one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant is tried.”  Id.

            A person commits the offense of aggravated sexual assault if he intentionally or knowingly causes the penetration of the female sexual organ of a child by any means.  Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i) (Vernon 2005).  For the purposes of this statute, a person is a child if she is under seventeen years of age and not the spouse of the actor.  See Tex. Pen. Code Ann. §§ 22.021(b)(1), 22.011(c)(1) (Vernon 2005).  A person commits the offense of indecency with a child, a second degree felony, if, with a child younger than 17 years and not the person’s spouse, he knowingly or intentionally engages in sexual contact.  Tex. Pen. Code Ann. § 21.11(a)(1) (Vernon 2005).  “Sexual contact” is defined, in relevant part, as any touching by a person of any part of the genitals of a child with the intent to arouse or gratify any person’s sexual desire.  Tex. Pen. Code Ann. § 21.11(c)(1).  A child victim’s uncorroborated testimony is sufficient to support a conviction for aggravated sexual assault.  Tex. Code Crim. Proc. Ann. art. 38.07(b)(1) (Vernon 2005); see Hellums v. State, 831 S.W.2d 545, 547 (Tex. App.–Austin 1992, no pet.).

Analysis–Legal Sufficiency

            In the case at hand, A.S. testified that Appellant touched her inappropriately in the summer of 2001.  Specifically, she testified that he inserted his finger about one half inch into her vagina and placed his mouth on her labia.  She also testified that Appellant told her to not tell anyone of the touching or he would hurt everyone she loved.  A.S. was nine years old when these events took place and was not the spouse of Appellant.

            In the context of an aggravated sexual assault charge, proof of the slightest penetration is sufficient to meet the requirement of “penetration.”  See Nilsson v. State, 477 S.W.2d 592, 595 (Tex. Crim. App. 1972); see also Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992) (penetration of female sexual organ does not require proof of penetration of vaginal canal).  This evidence is legally sufficient to sustain Appellant’s conviction for aggravated sexual assault.

            With respect to the indecency with a child offense, A.S.’s testimony that Appellant touched her labia with his mouth is sufficient to prove that he had contact with a part of her genitals.  See Clark v. State, 558 S.W.2d 887, 889 (Tex. Crim. App. 1977).  A.S. was a child and was not married to Appellant.  The evidence is legally sufficient to sustain Appellant’s conviction for indecency with a child.            Appellant’s first issue is overruled.

Standard of Review–Factual Sufficiency

            In reviewing factual sufficiency of the evidence, we must determine whether a neutral review of the evidence, both for and against the finding, demonstrates that a rational jury could find guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt.  Id.  Evidence is also factually insufficient when contrary evidence is so strong that the beyond a reasonable doubt standard could not have been met.  Id. at 484-85.  A verdict will be set aside “only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust.”  Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002).  A clearly wrong and manifestly unjust verdict occurs where the jury’s finding “shocks the conscience” or “clearly demonstrates bias.”  Zuniga, 144 S.W.3d at 481.

            As in legal sufficiency review, the fact finder is the sole judge of the weight and credibility of a witness’s testimony.  Wesbrook v. State, 29 S.W.3d 103, 111–12 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).  The jury may choose to believe all, some, or none of a witness’s testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

Analysis

            Appellant complains that A.S.’s testimony is “incredible and unbelievable” and cannot support the convictions.  Specifically, he argues that the abuse happened in a crowded trailer and could not have occurred without others knowing of it.  He also points out that A.S.’s therapist testified that A.S. had a fantasy life and occasionally lied to get out of trouble. 

            Support for these contentions can be found in the record, but the evidence is not so one dimensional.  There was testimony from family members about Appellant’s conduct towards his daughter.  One of A.S.’s brothers testified that he observed part of an episode of abuse in the summer of 2001 and that he overheard an argument between Appellant and A.S.’s mother about Appellant’s touching of A.S.  Another brother corroborated at least part of one complaint of sexual assault.

            A.S.’s therapist testified that A.S. had a fantasy life and lied on occasion.  She also said that the fantasy life was consistent with an escape mechanism employed by child abuse victims and that A.S. did not fantasize about being sexually assaulted by her father.  Furthermore, the therapist, called as a witness by Appellant, testified directly and forcefully that she believed the abuse occurred, that she believed A.S. was telling the truth, and that A.S. had not wavered in her story to her.  Finally, A.S.’s story was corroborated, at least in part, by Appellant’s admission to touching her inappropriately in the summer of 2002.

            Our review of the factual sufficiency of the evidence must not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony.  See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).  The sexual assault and indecency with a child were corroborated by evidence that is often lacking in cases of this sort, including eyewitness accounts and a confession to a similar act.  The jury had a panoply of information to use to consider A.S.’s credibility.  In addition to the evidence offered by the prosecution, including the testimony of A.S. and her siblings, Appellant offered the videotape of A.S.’s statement in this case and a videotape of her statement made when she was five years old as well as the case notes of her therapist.

            Given the circumstances of this case, we conclude that the verdicts were neither clearly wrong nor manifestly unjust.  In light of all the evidence, the guilty verdicts neither “shocks the conscience” nor “clearly demonstrates bias.”  Appellant’s argument is that the complaining witness was unbelievable.  In the ordinary case that is a decision for a jury to make, and it was not unreasonable for the jury to believe A.S. in this case.  Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury’s finding, has not caused us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction clearly wrong or manifestly unjust.  Therefore, we hold that the evidence is factually sufficient to support the jury’s verdict.  Appellant’s second issue is overruled.

Disposition

            The evidence is legally and factually sufficient to support Appellant’s conviction.  We affirm the trial court’s judgment.

                                                                                                    SAM GRIFFITH   

                                                                                                               Justice

Opinion delivered May 24, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)