Johnny Clawson, Jr. v. State ( 2010 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00134-CR
______________________________
JOHNNY CLAWSON, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Sixth Judicial District Court
Lamar County, Texas
Trial Court No. 22971
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Eighteen-year-old E.C. made a nervous witness who was extremely reluctant to give
details regarding two sexual assaults allegedly perpetrated against her by Johnny Clawson, Jr.,
when she was less than fourteen years old. Clawson was charged with two counts of aggravated
sexual assault and three counts of indecency with a child. After being found guilty and sentenced
to life imprisonment for each of the two sexual assault counts and twenty years’ imprisonment for
each of the three indecency counts, and assessed a $10,000.00 fine for each count, Clawson
appeals, challenging only the legal and factual sufficiency of the evidence supporting his
convictions on the two counts of aggravated sexual assault. We affirm, because the evidence is
sufficient.
We review the legal and factual sufficiency of the evidence supporting a conviction under
well-established standards. In conducting a legal sufficiency review, we consider the evidence in
the light most favorable to the verdict to determine whether any rational jury could have found the
essential elements of aggravated sexual assault beyond a reasonable doubt. Sanders v. State, 119
S.W.3d 818, 820 (Tex. Crim. App. 2003). We must give deference to ―the responsibility of the
trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.‖ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We are not required to
determine whether we believe that the evidence at trial established guilt beyond a reasonable
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doubt; rather, when faced with conflicting evidence, we must presume that the jury resolved any
such conflict in favor of the prosecution, and we must defer to that resolution. State v. Turro, 867
S.W.2d 43, 47 (Tex. Crim. App. 1993).
In conducting a factual sufficiency review, we consider the evidence in a neutral light.
Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim. App. 2006). The verdict will be set aside
only if (1) it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and
manifestly unjust, or (2) it is against the great weight and preponderance of the evidence. Id. at
415 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). Both legal and factual
sufficiency are measured by the elements of the offense as defined by a hypothetically correct jury
charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Grotti v. State, 273
S.W.3d 273, 280 (Tex. Crim. App. 2008).
Count I of the State’s indictment alleged Clawson ―cause[d] the penetration of the female
sexual organ of [E.C.], a child younger than fourteen years of age1 who was not the spouse of said
defendant by inserting his sexual organ into the female sexual organ of [E.C.].‖ Count II alleged
the ―penetration of the female sexual organ of E.C.‖ was caused ―by inserting [Clawson’s] finger
or fingers.‖ Clawson committed aggravated sexual assault if he intentionally or knowingly
committed these acts with E.C. when she was younger than fourteen years of age. TEX. PENAL
CODE ANN. § 22.021(1)(B)(i), (iii), (2)(B) (Vernon Supp. 2009).
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It is uncontested that E.C. was under fourteen years of age during the alleged acts of sexual assault.
3
E.C.’s testimony against Clawson included this sequence in which she provided evidence
supporting both alleged aggravated sexual assaults:
Q. Okay. Now, have there been times back in 2000 and 2003 when [Clawson]
would touch you inappropriately?
A. Yes.
....
Q. Okay. Can you tell the jury a time that you remember when something
happened with [Clawson]?
A. A lot of things happened.
....
Q. [E.C.], do you know what sexual intercourse is?
A. I’ve been told, but that’s it.
....
Q. Did [Clawson] ever do anything of a sexual nature to you?
A. Yes.
....
Q. Give me an example of one thing that [Clawson] would do that you’d seen
in the movies?
A. All of it.
Q. Okay, [E.C.], you’ve got to tell me a specific.
A. I can’t.
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Q. You can. Did he ever do anything with his hands?
A. Yes.
Q. What did he do with his hands?
A. Do all sorts of stuff.
....
Q. Can you describe to me other sexual acts that you say [Clawson] did to you?
A. I don’t think I can say it, but I can write it.
....
Q. What part of your body does your underwear cover? Does that part of your
body have a front part and a back part?
A. Yes.
Q. Which part of the body would [Clawson] touch with his penis and his
hands?
A. The front.
....
Q. The front part of a female has an inside and an outside. Would you agree
with me?
A. Yes.
Q. Did his penis and his fingers touch the inside or the outside of the front part
that your underwear covers?
A. Inside.
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Q. Outside?
A. Inside.
Q. When his penis would go inside the front part that your underwear covers,
would it be at the same time he was doing other things?
A. No, it would be all just - - no - -
Q. Would his fingers and his penis be inside of you at the same time, I guess is
my questions [sic]?
A. No.
Q. Different times?
A. Yes.
Clawson contends this testimony was insufficient to demonstrate penetration of the female
sexual organ. We disagree. The slightest penetration of the female sexual organ is sufficient to
prove penetration. See Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992).
Penetration occurs so long as contact with the female sexual organ could reasonably be regarded
by an ordinary person as more intrusive than contact with the outer vaginal lips. Id. ―Female
sexual organ‖ is a more general term than ―vagina‖ and refers to the entire female genitalia,
including both vagina and the vulva. Aylor v. State, 727 S.W.2d 727, 729–30 (Tex. App.—Austin
1987, pet. ref’d). Proof of penetration may be circumstantial. Vernon, 841 S.W.2d at 409; Belt
v. State, 227 S.W.3d 339, 342 (Tex. App.—Texarkana 2007, no pet.). Here, a rational jury could
find that ―the front part that your underwear covers‖ referred to E.C.’s female sexual organ and
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that her agreement—that Clawson’s ―penis and fingers‖ touched the ―inside‖ and that both were, at
some point, ―inside‖ of her—established penetration of E.C.’s sexual organ in the context of the
above testimony. See Villalon v. State, 791 S.W.2d 130, 133–34 (Tex. Crim. App. 1990).
Further, Christy Lynn McGeehee attended church with E.C. and testified that, one day, when
McGeehee and E.C. were alone together on an outing, E.C. ―burst out and she said, [Clawson]
makes me have sex with them.‖ We find the evidence was legally and factually sufficient to
establish aggravated sexual assault in the manner indicated by the State’s indictment.2
Clawson next argues E.C.’s testimony on cross-examination that she hated Clawson makes
her testimony incredible. Despite E.C.’s statement, the jury was free to believe E.C.’s and
McGeehee’s testimony. Giving the jury the deference it is due, we conclude the verdict was not
clearly wrong, manifestly unjust, or against the great weight and preponderance of the evidence.
The evidence is legally and factually sufficient.
We affirm the trial court’s judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: May 24, 2010
Date Decided: May 25, 2010
2
The jury was also made aware that E.C. watched pornographic movies, and heard her say ―everything on there is what
happened‖ between her and Clawson. While the general characterization of the videos was that they were
―pornographic‖ and the record contains the videos’ titles, that information does not provide any specifics on what
sexual acts were depicted in the videos.
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Do Not Publish
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