Willie Lee Chisom v. State ( 2007 )

                                                NO. 12-06-00209-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

WILLIE LEE CHISOM,       §                      APPEAL FROM THE EIGHTH

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      RAINS COUNTY, TEXAS

MEMORANDUM OPINION

            Willie Lee Chisom appeals his convictions for aggravated sexual assault.  In two issues, Appellant argues that the evidence was factually insufficient.  We affirm.

Background

            Appellant was L.S.’s stepfather.  According to the evidence, he sexually assaulted her when she was a young girl.  She reported the assault as a teenager after a relative found a journal entry she had written saying that Appellant “raped her every chance he got” when she was six or seven years old.  A Rains County grand jury indicted Appellant for three counts of aggravated sexual assault. Appellant pleaded not guilty, and a jury trial was held.  The jury found him guilty and assessed punishment at ninety–nine years of imprisonment and a fine of $10,000 on each count.  This appeal followed.

Sufficiency of the Evidence

            In two issues, Appellant argues that the evidence was factually insufficient to support the conviction.  Specifically, Appellant argues that the complaining witness lacked credibility and gave testimony that was inconsistent with an account of the assaults given prior to trial.

Standard of Review

            We review the factual sufficiency of the evidence to determine whether, considering all the evidence in a neutral light, the evidence supporting the conviction is too weak to withstand scrutiny or the great weight and preponderance of the evidence contradicts the jury’s verdict to the extent that the verdict is clearly wrong and manifestly unjust.  See Watson v. State, 204 S.W.3d 404, 414–15, 417 (Tex. Crim. App. 2006).  In doing so, we must first assume that the evidence is legally sufficient under the Jackson v. Virginia¹ standard.  See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact.  See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).² 

            Our role is that of appellate review, and the fact finder is the 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).  The fact finder 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).  When we review the factual sufficiency of the evidence, we are authorized to disagree with the jury’s determination, even if probative evidence exists that supports the verdict.  See Clewis, 922 S.W.2d at 133.  But our evaluation should not substantially intrude upon the jury’s role as the judge of the weight and credibility of witness testimony.  See Santellan, 939 S.W.2d at 164.

            As charged in the indictment, the State was required to prove that the complaining witness was a child under the age of fourteen, and not Appellant’s spouse, and that Appellant intentionally or knowingly caused the sexual organ of the child to touch his sexual organ (count one) or caused the penetration of the child’s sexual organ with his finger (counts two and three).³  See Tex. Penal Code Ann. § 22.021(b)(i), (b)(iii) (Vernon 2006).

Analysis

            Appellant argues that the complaining witness lacked credibility and that her testimony was inconsistent with an account of the assaults that she gave to an interviewer prior to trial.  After reviewing the evidence carefully, we cannot accept either that the complaining witness’s testimony was directly contradicted by the testimony of the interviewer or that the witness generally lacked credibility. Although one of her sisters witnessed part of what could have been one of the assaults, the complaining witness’s uncorroborated testimony is sufficient to support a conviction for sexual assault.  See Tex. Code Crim. Proc. Ann. art. 38.07(b)(1) (Vernon 2006); Satterwhite v. State, 499 S.W.2d 314, 315 (Tex. Crim. App. 1973); Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.–Houston [14th Dist.] 2002, pet. ref’d).  Furthermore, 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, 939 S.W.2d at 164.  Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive.  See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.–El Paso 1996, pet. ref’d). 

            Reasonable minds could differ as to whether the complaining witness’s description of events to the interviewer conflicts with her trial testimony. It is true, as Appellant points out, that the number of assaults, and the precise descriptions of them, vary in minute areas.  On the other hand, as the State points out, its expert witnesses explained the difficulties young children, or older children remembering what happened to them as young children, have describing the exact sequence of events or the number of events.  The principal inconsistencies brought forward by Appellant are 1) the complaining witness’s testimony that she was assaulted three to four times per week and her telling the interviewer that it happened five times a year for several years and 2) her statement to the interviewer that Appellant penetrated her vagina with his sexual organ and her testimony that he did not. 

            These are slightly different accounts, but the jury saw the videotaped interview and observed the complaining witness as she testified. They also heard Appellant’s testimony. The jury was in the best position to evaluate the credibility of the witnesses.  The State’s witnesses explained a possible reason for the difference relating to the number of alleged assaults.  And the complaining witness explained what she meant by the penetration of her vagina.  She explained that she had thought Appellant had penetrated her vagina.  She testified that she came to understand that Appellant had tried to penetrate her vagina, but was unable to put his penis fully inside her, as she testified, “because I was a little girl.”

            As charged in the indictment, the State was required to prove in count one only that Appellant touched the girl’s sexual organ with his own, not that he penetrated her vagina.  It was the task of the jury to resolve any conflicts in the evidence.  Their resolution of the factual issues in this case was reasonable.  Our review of the evidence does not show that the evidence is too weak to support the verdict standing alone or that the evidence is outweighed by contrary proof. We overrule Appellant’s two issues.

Disposition

            We affirm the judgment of the trial court.

                                                                                                    SAM GRIFFITH   

                                                                                                               Justice

Opinion delivered July 31, 2007.

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

(DO NOT PUBLISH)

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¹ Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

² Citing Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004), Appellant argues that evidence can be factually insufficient even if the evidence preponderates in favor of conviction.  To the extent that this was ever the law, the court of criminal appeals has expressly disavowed it.  See Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (“Any holding that a criminal appellate court can reverse and remand for a new trial even when the evidence ‘preponderates’ in favor of a conviction is inconsistent with that historically required high level of skepticism. We therefore disavow such language in Zuniga and reiterate that it is not enough that the appellate court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence.”) (footnote omitted).

³ The indictment alleged two different instances of Appellant’s penetrating the child’s sexual organ with his finger.