Buck Edward Marshall, Jr. v. State ( 2004 )

11th Court of Appeals

11th Court of Appeals

Eastland, Texas

Opinion

Buck Edward Marshall, Jr.

Appellant

Vs.                   No. 11-03-00140-CR -- Appeal from Collin County

State of Texas

Appellee

The jury found Buck Edward Marshall, Jr. guilty of two counts of sexual assault of a child.  The indictment charged in count one that one assault occurred on or about March 24, 2002, and in count two that an earlier assault occurred on or about December 25, 2001.  Appellant was sentenced to 37 years confinement in the Texas Department of Criminal Justice, Institutional Division.  In a single point of error, appellant argues that the evidence was legally and factually insufficient to support his conviction.  

The 15-year-old victim related how she became involved with appellant, a 32-year-old married man, and how they began and continued to have sexual relations.  Other witnesses testified that appellant admitted that he had Aslept@ with the victim and that he knew it was wrong.  We affirm.

Standard of Review

In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).  In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict was clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met.  Zuniga v. State, No. 539-02,  2004 WL 840786 (Tex.Cr.App. April 21, 2004); Ross v. State, 133 S.W.3d 618 ( Tex.Cr.App.2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). The jury, as the trier of fact, was the sole judge of the credibility of the witnesses and of the weight to be given to their testimony.  TEX. CODE CRIM. PRO. ANN. arts. 38.04 & 36.13 (Vernon 1979 & 1981); Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000).  We review the fact finder=s weighing of the evidence and cannot substitute our judgment for that of the fact finder.  Cain v. State, supra; Clewis v. State, supra.  Due deference must be given to the fact finder=s determination, particularly concerning the weight and credibility of the evidence.  Johnson v. State, supra; Jones v.State, 944 S.W.2d 642 (Tex.Cr.App.1996), cert. den=d, 522 U.S. 832 (1997).

                                                                    The Evidence

The State presented testimony to prove the elements of sexual assault of a child: that appellant intentionally or knowingly caused the penetration of the sexual organ of the victim, a child then younger than 17 years of age and not the spouse of appellant, by means of his sexual organ.  See TEX. PEN. CODE ANN. '22.011(a)(2)(A)(Vernon Supp. 2004-2005).  The State was not required to prove that appellant knew the victim was younger than the age of 17.  Ignorance of the victim=s age is not a defense.  Vasquez v. State, 622 S.W.2d 864, 865-66 (Tex.Cr.App.1981).        

The victim testified that she and her mother moved from Kansas City to live with her older sister, Kai Hawkins, in Plano on December 2, 2001.  The victim was 15 years old at the time.  Kai lived with her three children.  Kai had also let a long-time friend, Lynette Marshall, and her 32-year-old husband (appellant) move in with her in October until they could get resettled.

Kai helped Lynette get a job with the Medical Center of Plano where she worked; both Kai and Lynette worked the night shift.  The victim=s mother left the house each morning at 5:30 a.m. to go to her job.  Appellant did not have a job.  According to the victim, appellant would wake her up each morning by jumping on her back, and she and appellant would play games.  The victim testified that she and appellant got along well and that appellant asked her to have sex with him after she had been living in Plano about two weeks.  Although she told him no, the victim said that appellant then put on some rhythm and blues music A[t]rying to get me in the mood.@  The victim said that she didn=t do anything at the time, just went back to sleep.

The victim testified that she and appellant first had sexual intercourse on Christmas Eve of 2001.  She stated that she and Kai=s children were sitting on the floor in appellant=s bedroom, watching television.  She fell asleep.  The victim said that appellant awakened her by pulling her jeans down and then pulling her underwear down.  She and appellant were alone.  According to the victim, appellant  placed his finger in her vagina for two or three minutes and then went into the bathroom to put on a condom.  The victim testified that they had sexual intercourse on the floor, that he put A[h]is penis in [her] vagina,@ that she enjoyed appellant Amessing@ with her, and that she liked appellant.  Later that night, appellant told her:  AWe=d make a pretty baby.@ 

After celebrating Christmas, the victim, Kai, Lynette, and Toya drove to Arkansas in two cars to visit various family members.  The victim rode with Lynette, but she did not tell Lynette that she had had sex with appellant even though she felt guilty about it.  She said that she did not tell Lynette because she did not want to hurt Lynette=s feelings.  The victim did say that, while in Pine Bluff, Arkansas, she told Kai and Toya that she had had sex with appellant.

The victim said Kai was angry at appellant but not at her.  The victim asked Kai to not tell anyone, not even the police, because the victim did not want to hurt Lynette=s feelings. In her testimony, Kai said that she did not call the police.  Instead, she later confronted appellant, and A[h]e assured me that it wouldn=t happen again.@  When Kai asked appellant why he had Aviolate[d]@ her sister, appellant replied:  AI don=t know.@  Kai then asked him if he felt bad about it, and appellant replied, AWell, yeah, I feel bad about it.@ Kai testified that appellant then gave her his word that he would not have sex with the victim again.  Kai said that she trusted appellant because she thought that he valued his marriage with her friend.  The victim confirmed Kai=s confrontation with appellant.  Later, after the confrontation, appellant told the victim, AYou have a big mouth.@

Despite appellant=s promise to Kai, the victim testified that she and appellant continued to have sexual intercourse.  She testified that appellant would approach her in the living room between 2:00 and 4:00 a.m. while Kai and Lynette were at work and her mother was asleep in her room.  The victim described the sexual encounters and stated that she had sex with appellant ten times.  The victim said that the last time that she had sexual intercourse with appellant was AMarch 20-something.@

On March 28, 2002, Kai and the victim=s mother were with the victim for her appearance in truancy court.  While at the truancy court, the victim told them that she had continued to have sex with appellant.  The victim described Kai as being upset and being determined to call the police.  The victim recalled that Kai called the police when they returned home that day.  Although the victim said that she understood why Kai called the police, she was Aa little bit@ angry with Kai.  The victim believed that Kai should have just kicked appellant out of the house.

Stacy Jones, who lived next door to Kai, testified that he was a friend of appellant=s and that he used to Ahang out@ with appellant.  Jones stated that appellant told him that appellant had Aslept@ with the victim.

Plano Police Officer Michael Weaver was dispatched to Kai=s house on March 31, 2002.  The victim told him about her sexual relations with appellant.  Officer Weaver testified that, according to the victim, after the victim told her sister about the first sexual encounter, the victim next had sex with appellant on January 4 and the last time on March 27.  Officer Weaver said that he noted no Ared flags@ signaling false allegations by the victim, Kai, or the victim=s mother.

Plano Detective Luke Grant, a specialist in investigating sex crimes, subsequently interviewed the victim, Kai, the victim=s mother, Jones, and Chris Dabney, a friend of the victim.  Detective Grant also testified that he did not see any indication that the victim=s statements were inconsistent or that the allegations were false.

                                                  Appellant=s Argument

Appellant=s argument is primarily an attempt to undermine the credibility of the victim.  He emphasizes that the only evidence of the sexual offenses was the victim=s testimony and that the victim had said that she had not wanted to file the charges.  In sexual assault cases, the testimony of a child victim is sufficient to support a conviction.  TEX. CODE CRIM. PRO. ANN. art. 38.07(a) (Vernon Pamph. Supp. 2004-2005); Empty v. State, 972 S.W.2d 194, 196 (Tex.App. - Dallas 1998, no pet=n); Ruiz v. State, 891 S.W.2d 302, 304 (Tex.App. - San Antonio 1994, pet=n ref=d).  It appears  that the victim did not want to file charges against appellant.  Her sister, Kai, described the victim as being infatuated with appellant and said that the victim did not see her sexual relations with appellant as being Aaltogether wrong.@  The important point, however, is that the victim gave clear and detailed testimony about her sexual relations with appellant from the first encounter on Christmas Eve to the final one on AMarch 20-something.@   

 Appellant argues that there were inconsistencies concerning the victim=s two Aoutcry@ statements to Kai.  He points out that the victim testified that she made the first outcry several days after the Christmas Eve incident while she and Kai were staying in a motel in Arkansas, yet the victim told Officer Weaver that she made the outcry on December 26, 2001.  Appellant then points out that the second outcry was made on March 28 at the truancy court.  He emphasizes that the victim testified that the last sexual encounter took place on AMarch 20-something,@ yet the victim told Officer Weaver that it had taken place on March 27.  These are minor inconsistencies.  The victim testified a year after she made the statements to Officer Weaver.

Finally, appellant argues that the fact that no medical examination was performed on the victim should be considered in determining the factual sufficiency of the evidence.  However, Detective Grant testified that, when a teenager voluntarily participates in sexual relations with someone she likes and there is a delayed outcry, he would not expect an examining physician to find semen, any sign of injury, or other evidence of the sexual act. Detective Grant did not begin his investigation until April 3 and he confirmed that the victim consistently noted that appellant put on a condom before they had sexual relations.  It was apparent that, based on Detective Grant=s experience, he did not think that an examination would have provided physical evidence of the victim=s sexual relations with appellant. 

Detective Grant admitted that the victim was reluctant to talk to him about her sexual relations with appellant.  He expressed his opinion that in cases like this B where an older male has engaged in intercourse with an underage girl B the victim was usually looking for a friend, physical contact, intimacy, or attention.  Those desires make the victim an easier target for the older male.

We find that the evidence was legally and factually sufficient to support the jury=s verdict.  Appellant=s single point of error is overruled.

                                                                This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

September 23, 2004

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and  McCall, J.