Oliver, Marcellous Anthony v. State ( 2003 )

Opinion issued December 11, 2003

In The

Court of Appeals  

For The

First District of Texas  

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  NO. 01-02-00877-CR

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MARCELLOUS OLIVER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 868697  

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  MEMORANDUM OPINION

          Appellant, Marcellous Oliver, pleaded not guilty to the felony offense of aggravated sexual assault, but was found guilty by a jury, which assessed punishment at twenty years in prison. In his sole issue, appellant contends that the evidence is factually insufficient to sustain the conviction. We affirm.   

Background

          Six friends, Jose, Michelle, Chenda, Sammy, Jesus, and complainant left a party at approximately 2:30 a.m. and discussed whether to go next to a hotel or to someone’s house. Jose and complainant disagreed about the plans and left the vehicle in which the group had been traveling. Jose walked to the home of his stepsister, but complainant became lost because she was unfamiliar with the area. Complainant walked for approximately 15 to 20 minutes and then came upon appellant. When complainant asked to use appellant’s telephone, he told her that she could use the one at his house. Complainant followed appellant to his residence. Upon arriving at appellant’s house, appellant grabbed complainant’s arm and “tugged” her inside the house. Appellant’s house was very dark, and complainant “knew something bad was about to happen.” When she asked to use appellant’s telephone, he told her to remove her clothes or “he would kill her.” She became frightened and removed her trousers and underwear. Appellant then sexually assaulted her by placing his penis in her vagina. Complainant begged appellant to stop, but he continued to sexually assault her, telling her “over and over” that he was going to kill her.

          Meanwhile, Jose received a telephone call from the other friends, who stated that they could not locate complainant, and they reunited to search for her. While searching, they heard complainant screaming for help from a house. The house was appellant’s.

          When Jose and Sammy kicked down the door to the house, they saw appellant buckling his trousers and heard him saying, “I didn’t do nothing to her.” But complainant told Jose and Sammy that appellant had raped her and hit her. Appellant then ran out of the house, chased by Jose and Sammy, who tackled him, and held him until the police arrived. Factual Sufficiency of the Evidence

          In his sole issue, appellant contends that the evidence is factually insufficient to support his conviction for aggravated sexual assault. When determining a challenge to the factual sufficiency of the evidence to support a conviction, we review all of the evidence neutrally by comparing the evidence that tends to prove the existence of the elemental fact in dispute with the evidence that tends to disprove that fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). Proof of guilt is factually insufficient if the evidence is so obviously weak as to be clearly wrong and manifestly unjust or if it is greatly outweighed by contrary proof. Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex. Crim. App. 2003). The fact finder, however, is the sole judge of the weight and credibility of witness testimony. Johnson v. State, 23 S.W.3d at 7.

          Appellant contends that the evidence is factually insufficient because (1) it consisted primarily of testimony of witnesses who were intoxicated or had memory losses, (2) complainant never identified appellant as her attacker, and (3) no scientific DNA evidence was introduced.

          Appellant contends that the testimony of complainant and her friends was not credible because all were intoxicated, and complainant had memory lapses concerning the time of the assault and the loss of her money. We also note that the jury heard evidence that appellant had used crack cocaine on the night of the assault. Intoxication or impairment of witnesses, however, bears on their credibility, a determination that is within the exclusive province of the jury. See Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997). The jury was aware of appellant’s use of cocaine and complainant’s and the remaining witnesses’ intoxication and may well have considered that factor in determining their credibility.

           Appellant further contends that the evidence is factually insufficient because complainant herself never identified appellant as her rapist, either at the scene or in court. This contention ignores, however, the testimony of Houston Police Department (HPD) Officer Peters, who stated that complainant identified appellant at the scene as the perpetrator. Furthermore, Jose identified appellant at the scene and in court as the person who assaulted complainant. Jose testified that complainant and appellant were the only persons that he observed inside appellant’s house. Moreover, Jose testified that, when he entered appellant’s house, complainant immediately informed Jose that appellant had raped her. Jose further testified that complainant was visibly upset and that appellant was attempting to button his trousers when Jose arrived. Another witness, Michelle, positively identified appellant as the individual she observed running out of appellant’s house while being chased by Sammy and Jose. Michelle stated that appellant’s trousers were “unzipped and unbuckled” as he ran from the house. HPD Officer Skinner observed Jose tackle appellant and, upon approaching them, heard Jose yell, “[H]e raped her, he raped her.” Officer Skinner identified appellant as the individual whom Jose chased and tackled.

          Proof of identity of the accused may be established by direct or circumstantial evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1989); McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989). Complainant’s identification of appellant as her rapist to Officer Peters and Jose is sufficient direct evidence to establish appellant’s guilt. However, even if the evidence failed to establish that complainant herself positively identified appellant, as appellant asserts, the testimony of Jose, Michelle, and Officer Skinner was sufficient to establish appellant’s identity as the person who sexually assaulted complainant.

          Appellant concludes his factual-sufficiency challenge by asserting that the evidence is factually insufficient because no DNA evidence established appellant’s guilt. As is well-settled, however, a victim’s testimony is sufficient to support a conviction for aggravated sexual assault. Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978); Sims v State, 84 S.W.3d 768, 774 (Tex. App.—Dallas 2002, pet. ref’d).

          We conclude the proof of guilt is not so weak as to be clearly wrong or manifestly unjust. Furthermore, the proof of guilt is not greatly outweighed by contrary proof. We hold that the evidence is factually sufficient to support appellant’s conviction and overrule appellant’s sole issue on appeal.                      

Conclusion

          We affirm the judgment of the trial court.

                                                                        Elsa Alcala

                                                                        Justice  

Panel consists of Chief Justice Radack and Justices Keyes and Alcala.  

Do not publish. Tex. R. App. P. 47.2(b).