Richard Wayne Hammer v. State ( 2016 )

Opinion filed October 27, 2016
In The
Eleventh Court of Appeals
__________
No. 11-14-00288-CR
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RICHARD WAYNE HAMMER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 266th District Court
Erath County, Texas
Trial Court Cause No. CR14201
MEMORANDUM OPINION
The jury convicted Richard Wayne Hammer of aggravated sexual assault of a
child. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (a)(2)(B), (e) (West Supp.
2016). The jury assessed his punishment at confinement for ninety-nine years. In
Appellant’s sole issue on appeal, he contends that the evidence is insufficient to
sustain the verdict of the jury. We affirm.
We review the sufficiency of the evidence, whether denominated as a legal or
as a factual sufficiency claim, under the standard of review set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet.
ref’d). Under the Jackson standard, we examine all of the evidence in the light most
favorable to the verdict and determine whether, based on that evidence and any
reasonable inferences from it, any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319;
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Evidence is
insufficient under this standard in four circumstances: (1) the record contains no
evidence probative of an element of the offense; (2) the record contains a mere
“modicum” of evidence probative of an element of the offense; (3) the evidence
conclusively establishes a reasonable doubt; and (4) the acts alleged do not constitute
the criminal offense charged. Brown v. State, 381 S.W.3d 565, 573 (Tex. App.—
Eastland 2012, no pet.) (citing Jackson, 443 U.S. at 314, 318 n.11, 320).
Eric Shane Covey and Holly Renea Prock are L.C.’s parents. Covey testified
that he received a call about L.C. being removed from Prock by CPS. After CPS
workers removed L.C. from Prock’s house, they placed her in the home of Cindy
Hammer. Cindy is Prock’s mother and L.C.’s grandmother. Cindy and Appellant
were married and lived together in Dublin, Texas. Covey testified that Appellant
could not be in the home with L.C. because Appellant was a registered sex offender.
L.C. went to live with Covey a few days after CPS removed L.C. from Prock’s care
and placed her with Cindy.
Covey and L.C. lived with his parents. He testified that, on one occasion after
L.C. had gone to the bathroom, she told him, “Daddy there’s . . . blood in my pee.”
Covey explained that she had already flushed the toilet, so he took her into the
kitchen, away from everybody, and said to her, “[Y]ou know, [L.C.] you know, little
girls shouldn’t be bleeding when they pee unless somebody has been touching you
down there.” He testified, “[S]he just said, no, like real hard, and I said, now, [L.C.]
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you’re not going to get in trouble, I’m your daddy, but if somebody has been
touching you down there, I need to know, and she just kind of bowed her head and
said Papoo.” L.C. called Appellant “Papoo.” Covey asked L.C. if this had happened
just once, and she told him that “it’d happened ever since she could remember, since
she was like four.”
Sandra Enriquez, a sexual assault nurse examiner at Cook Children’s Medical
Center, testified that she examined L.C. on January 21, 2014, when she was brought
in by her father. Enriquez said that L.C. told her that L.C.’s grandpa, Papoo,
“touche[d] with his finger on the inside.” L.C. also told Enriquez that “it hurts.”
Covey was not present when L.C. was interviewed. Enriquez made a diagnosis of
“sexual abuse, with no anal or genital injuries noted.” She explained that any
touching of a child that age as described by L.C. would have been painful. Further,
Enriquez testified that any touching of a child that age on the inside of the female
genitalia would be painful.
As part of the SANE examination, Enriquez took swabs of the inside of L.C.’s
genitalia. Jennifer Valentine, from the Tarrant County Medical Examiner’s Office,
tested the swabs for DNA. She testified that DNA from the swabs from L.C.’s labia
were from a male. However, she could not match the DNA to a specific person.
L.C. testified at trial. The prosecutor asked L.C. if Papoo touched her in a
“bad way,” and L.C. nodded her head in the affirmative. When asked, “Where did
he touch you?” L.C. pointed down. L.C. said that it made her “[s]ad” when Papoo
touched her in “the bad place.”
Appellant denied any sexual touching or penetration of the child. However,
he did admit that he had violated the CPS agreement that he not have contact with
L.C. and also admitted that he had a previous conviction for sexual conduct with a
minor in Arizona. Additionally, he testified that L.C. was truthful “most of the
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time.” Cindy Hammer testified that she never saw Appellant do anything that would
lead her to believe that Appellant touched L.C. sexually.
A person commits the offense of aggravated sexual assault of a child if he
intentionally or knowingly causes “the penetration of the anus or sexual organ of a
child by any means.” PENAL § 22.021(a)(1)(B)(i). Appellant argues that the
evidence is insufficient to prove that Appellant penetrated L.C. Appellant contends
that, while L.C. said that Appellant touched her and that it made her sad, she did not
say that he penetrated her.
We disagree with Appellant. Enriquez testified that L.C. told her that Papoo
touched her on the inside and that it hurt. L.C. also testified that it made her sad
when Papoo touched her in “the bad place.” Further, DNA from the swabs from her
labia was from a male. Proof of only slight penetration is sufficient. Sherbert v.
State, 531 S.W.2d 636, 637 (Tex. Crim. App. 1976); see Vernon v. State, 841 S.W.2d
407, 409 (Tex. Crim. App. 1992). Furthermore, the testimony of a child victim alone
is sufficient to support a conviction for aggravated sexual assault. TEX. CODE CRIM.
PROC. ANN. art. 38.07(a) (West Supp. 2016); Empty v. State, 972 S.W.2d 194, 196
(Tex. App.—Dallas 1998, pet. ref’d). Accordingly, viewing all the evidence in the
light most favorable to the verdict, we conclude that a rational trier of fact could
have found all of the elements of the offense of aggravated sexual assault of a child
beyond a reasonable doubt. Therefore, the evidence is sufficient to support
Appellant’s conviction. Appellant’s sole issue on appeal is overruled.
We affirm the judgment of the trial court.
October 27, 2016 JIM R. WRIGHT
Do not publish. See TEX. R. APP. P. 47.2(b). JUSTICE
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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