Reagor v. State , 816 S.W.2d 481 ( 1991 )

OPINION

MALONEY, Justice.

The jury convicted Gary Fitzgerald Rea-gor of aggravated sexual assault. The trial court assessed a thirty year sentence. In a single point of error, appellant contends that the evidence is insufficient to support the verdict. We sustain appellant’s point and reverse the trial court’s judgment.

FACTUAL BACKGROUND

Complainant was three years old at the time in question. She lived in Dallas County with her parents and her five-year-old brother. Complainant shared a bedroom with her brother. On June 26, 1989, appellant, complainant’s maternal uncle, spent the night at her house. He slept on the floor in the children’s room. Three to seven days later, complainant’s mother noticed some discharge in complainant’s underwear. The discharge did not clear up. Complainant’s parents took her to Parkland Hospital for treatment on July 19, 1989.

On July 27, 1989, a social worker told complainant’s parents their daughter had gonorrhea. The social worker said that all men who had contact with complainant needed to be tested for venereal disease. Complainant’s mother testified that complainant’s father, grandfather, paternal uncle, and maternal uncle were the only men who had access to complainant. The next day, those men were tested for gonorrhea at the public health clinic.

The record also reveals that other men had access to complainant. Complainant’s mother testified that complainant was sometimes, (“not too often”), around her uncle, George, and her fourteen-year-old cousin, Curtis. Complainant’s mother further testified that there were teenage boys in that neighborhood. None of those individuals were tested.

As the men left the clinic, appellant told complainant’s father that he tested positive for something, but it wasn’t a venereal disease. The next day complainant’s father called the clinic. He learned that only appellant tested positive for gonorrhea.

Complainant’s parents testified about a previous incident which they now believe was suspicious. Complainant’s father testified that appellant baby-sat with complainant when she was about two years old. The father once found a white, dried substance on the sheets. He thought it looked like sperm. He also testified that “she was kind of open in that area, so to speak.”

Complainant’s mother testified about what was apparently the same incident. However, she said that complainant was one year old. The mother testified that complainant looked “funny down there,” “red down there,” “widening or open,” and “it looked wet.” She thought appellant was not changing complainant’s diapers often enough. The parents’ only response to this incident was to tell appellant to change complainant’s diapers more often.

At trial, the pediatrician who diagnosed complainant’s gonorrhea testified that usually a female child contracts gonorrhea when a male touches the tip of his infected penis against the child’s vagina. It may be “unusual,” but it is “not impossible” that somebody could transmit gonorrhea from his hand provided that there was a “good dose of gonorrhea germs” on it. To become infected, complainant must have come in contact with something that had gonorrhea germs on it.

According to the doctor, the incubation period for gonorrhea is much shorter for males than females. In young females, the time lapse from contact with the germs to discharge could range from one day to four weeks.

The record also includes the testimony of a nurse from the public health clinic. She verified the men’s test results. Appellant and complainant both had Neisseria gonorrhea. Before taking the test, appellant told the nurse that he had no symptoms of a veneral disease. He also told her that he had two female sexual partners. The nurse testified that gonorrhea could only be transmitted by penile to vaginal contact. According to the nurse, most people who contract gonorrhea develop symptoms between two and fourteen days from exposure. Finally, the nurse testified that gonorrhea is an “extremely common” disease. “Thousands” of people in Dallas County have gonorrhea.

SUFFICIENCY OF THE EVIDENCE

Appellant contends the evidence is insufficient to support his conviction. He argues that the evidence only establishes that: (1) he and complainant had Neisseria Gonorrhea in the summer of 1989; and (2) he had an opportunity for sexual contact with complainant consistent with the incubation period. He maintains that there is no evidence that connects him to the offense. We agree.

a. Standard of Review

When an appellant questions the sufficiency of evidence, we review the evidence in the light most favorable to the verdict. We determine whether any rational trier of fact could have found each element of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989). This standard of review applies to circumstantial evidence cases as well as to direct evidence cases. Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984).

Texas law requires that the State establish: (1) the offense was actually committed; and (2) the accused was the person who either committed or participated in the crime. See Johnson v. State, 673 S.W.2d 190, 197 (Tex.Crim.App.1984). The State must prove more than just a plausible explanation of the crime. Reeves v. State, 806 S.W.2d 540, 543 (Tex.Crim.App.1990), cert. denied, — U.S.-, 111 S.Ct. 1641, 113 L.Ed.2d 736 (1991). While the trier of fact is the sole judge of the weight and credibility of the witnesses, Coe v. State, 683 S.W.2d 431, 438 (Tex.Crim.App.1984); Williams v. State, 692 S.W.2d 671, 676 (Tex.Crim.App.1984), a guilty verdict should not be allowed to stand merely because the defendant was found to be the most likely assailant. A defendant, even the most likely defendant, is presumed to be innocent unless his guilt is established beyond reasonable doubt. See Tex.Code CRIm.Proc.Ann. art. 38.03 (Vernon Supp. 1991); see also Ardovina v. State, 143 Tex.Crim. 43, 156 S.W.2d 983, 984 (1941); Perkins v. State, 32 Tex. 109, 112 (1869).

In a circumstantial evidence case, the State is not required to exclude every hypothesis that the criminal act may have been committed by another person. Brandley v. State, 691 S.W.2d 699, 703 (Tex.Crim.App.1985). However, the State must exclude every reasonable hypothesis raised by the evidence that tends to exculpate the accused. Brandley, 691 S.W.2d at 703.

b. Analysis

The State’s evidence shows that appellant and complainant both had Neissera Gonorrhea, and appellant had the opportunity for sexual contact with complainant. We examine the record to determine whether there is any corroborative evidence of sexual contact.

There was no outcry. The complainant did not testify. There was testimony that she did not remember any sexual assault. Cf. Barnhart v. State, 716 S.W.2d 572, 575 (Tex.App.—Houston [1st Dist.] 1986, writ ref’d); Voight v. State, 662 S.W.2d 420, 422 (Tex.App.—Corpus Christi 1983, writ ref’d); People v. Whitfield, 425 Mich. 116, 388 N.W.2d 206, 214 (1986). The members of complainant’s family noticed nothing unusual on or around June 26, 1989. No one testified to any unusual conduct by complainant or appellant which suggests illicit physical contact. Cf. Voigkt, 662 S.W.2d at 421 (complainant’s seven-year-old brother who slept in the same bed remembered Voight on top of his six-year-old sister).

The complainant had no physical signs of contact or penetration. There was no bruising, injuries, or sperm on or in the vaginal area. Cf. id. There was no evidence of sperm on the sheets. No one described complainant’s clothing as ripped or disheveled. Further, the doctor testified that gonorrhea could be transmitted without sexual contact.

The father’s testimony about the previous, suspicious white substance on the sheets is nothing more than that — a suspicion. This evidence does not even support an inference to connect appellant to the offense for which he was tried. See Allen v. State, 686 S.W.2d 685, 689 (Tex.App.—San Antonio 1985, no pet.).

Appellant was the only one of the men tested to have Neisseria gonorrhea on July 28, 1989. However, the evidence does not show whether appellant had gonorrhea on June 26, 1989.¹ The record reflects that several baby-sitters cared for complainant during the summer of 1989. Complainant’s uncle, George, and her fourteen-year-old cousin, Curtis, as well as teenage boys in both the complainant’s neighborhood and her babysitters’ neighborhood may have had access to complainant. They were not tested.

Appellant’s actions after June 26, 1989 are consistent with innocence. Appellant was asymptomatic, so he may not have known that he had gonorrhea. Still, he freely took the venereal disease exam. He then admitted to complainant’s father that he tested positively for “something,” although he said it wasn’t a venereal disease. He also willingly gave complainant’s father his test number so the father could call and confirm appellant’s results. Moreover, there is no evidence that appellant fled prosecution or that he tried to influence the testimony of any witnesses. Cf. Commonwealth v. Jackson, 585 A.2d 36, 41 (Pa.Super.1991).

The evidence also raises the reasonable hypothesis that appellant did not have gonorrhea at the time the alleged assault took place. Both the nurse and the doctor testified that there is no test that conclusively confirms who infected complainant or how she contracted gonorrhea. The nurse testified that gonorrhea is an “extremely common” disease² and “thousands” of people in Dallas have gonorrhea. She further testified that appellant told her that he had two female sexual partners at the time in question. Finally, she testified that the incubation period for gonorrhea is two to fourteen days. Given the incubation period, it is just as reasonable to assume that appellant contracted the disease from his sexual partners anytime between July 14 to July 26, 1989, weeks after the alleged assault took place. The State did not exclude this reasonable hypothesis.

The limited circumstantial evidence, even when viewed in the light most favorable to the verdict, does not prove beyond a reasonable doubt that appellant had sexual contact with his three-year-old niece. The evidence only shows that complainant and appellant both had gonorrhea during the summer of 1989. Because appellant had the opportunity to commit this assault, he is a likely suspect. However, there is no other corroborating evidence. Although appellant may be the most likely assailant, the State did not sustain its burden. No rational juror could find each element of the offense beyond a reasonable doubt. We hold that the evidence is insufficient to support appellant’s conviction. We sustain appellant’s point of error. We reverse appellant’s conviction and order entry of a judgment of acquittal. Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 24, 98 S.Ct. 2151, 2154, 57 L.Ed.2d 15 (1978).

LAGARDE, J., dissenting.

1 . See Mallory v. State, 699 S.W.2d 946, 949 (Tex.App.—Texarkana 1985), rev'd on other grounds, 752 S.W.2d 566 (Tex.Cr.App.1988) (Texarkana court held that even though Mallory did not have gonorrhea on date of testing he might have been infected on the day of the alleged assault seven weeks earlier, based on expert testimony that gonnorrhea could be cured by some over-the-counter drugs in a very short period of time).

2 . Cf. Commonwealth v. Jackson, 585 A.2d 36, 39 (Pa.Super 1991).