      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-06-00732-CR



                                Frederick Riley Abbott, Appellant

                                                   v.

                                    The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
            NO. 60071, HONORABLE RICK MORRIS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                On November 14, 2006, a Bell County jury convicted appellant Frederick Riley

Abbott of aggravated sexual assault of a child, a first-degree felony. See Tex. Penal Code Ann.

§§ 22.021(a)(1)(B), (a)(2)(B), (b)(1), (e), 22.011(c)(1) (West Supp. 2006). At punishment, after

Abbott pleaded true to two enhancement paragraphs in the indictment, the jury sentenced him to life

imprisonment and fined him $10,000, the maximum punishment. See id. § 12.32 (West 2003). In

his sole point of error, Abbott argues that the evidence presented at his trial is factually insufficient

to support his conviction. We will affirm the judgment of the trial court.


                                          BACKGROUND

                At the time of the incident, the complainant S.L. was seven years old and was living

with her mother Janelle1 and her three sisters. Janelle had just separated from S.L.’s father, William,

and had started a sexual relationship with Abbott, William’s half-brother. William was in the


        1
            We refer to S.L.’s immediate family members by their first names for convenience.
process of moving to live with his mother, Charlotte,2 at her home in Brookfield Mobile Home Park

in Killeen. Abbott’s home was a trailer in the same trailer park. On June 23, 2006, Janelle visited

Abbott at his home, bringing S.L. and her three other daughters with her. They all spent the night

there, with Abbott and Janelle sleeping in Abbott’s room and the daughters sleeping in the room

normally occupied by Abbott’s roommate Mark Bruyette. William was also present in Abbott’s

trailer that evening, which was a common occurrence.              William and Bruyette slept in

Abbott’s living room.

               The next morning, Abbott and Janelle got into an argument about who would feed

the children. At the time Abbott was shirtless and wearing black shorts and was drinking a forty-

ounce bottle of malt liquor. After the argument Janelle went to lie down, complaining of a headache,

so William fed the children himself and then went to check on Janelle. When William returned to

the living room, he noticed that both S.L. and Abbott were missing, prompting him to leave the other

children in Bruyette’s care and go looking for S.L. and Abbott. William acted on Bruyette’s advice

to check Charlotte’s trailer, but was initially prevented from entering because the normally unlocked

trailer door was locked. William unlocked and entered the trailer and began to search for his

daughter and half-brother. When he entered one of the trailer’s bedrooms, he encountered Abbott

naked on top of a person of significantly smaller stature. Abbott completely obscured the person

with the exception of the person’s arms, which appeared to be the arms of a child. William testified

that while he could only see the person’s arms, he assumed that Abbott was having sex with his

daughter S.L. William is an epileptic and was afraid that confronting Abbott would trigger a seizure.

Because Abbott had not noticed him, William elected to get Janelle to help instead of confronting



       2
           Charlotte is also Abbott’s mother.

                                                 2
Abbott. Upon arriving at Abbott’s trailer, William stayed with the remaining children while Janelle

and Bruyette ran to Charlotte’s trailer.

               Janelle testified that when she entered Charlotte’s trailer, she found Abbott standing

in the hall outside the bathroom. S.L. was inside the bathroom seated on the toilet. No other persons

were in the trailer. S.L. told Janelle that her bottom hurt. Janelle noticed what appeared to be dish

soap discharge “with other stuff mixed in” on S.L.’s bottom. Janelle told S.L. not to wipe and took

her outside of the trailer. A friend called the police, who were quickly dispatched.

               Upon arriving at the scene, one of the officers noticed a man without a shirt, wearing

black shorts, and carrying a forty-ounce bottle of malt liquor walking away from the location and

disappearing behind other trailers. A crowd had meanwhile gathered around Charlotte’s trailer.

Janelle brought S.L. to the officer. S.L. told the officer that her bottom hurt. The officer called for

an ambulance, which took S.L. to a nearby hospital, with Janelle accompanying her. The officer then

interviewed William and took a statement. The officer learned that the suspect was the person he

had seen walking away from the location bare-chested in black shorts and advised other officers of

Abbott’s location. At trial, the officer identified the suspect as Abbott.

               Upon S.L.’s arrival at the hospital, Lori Talbott, a sexual assault nurse examiner,

examined S.L. Talbott testified at trial to the results of that examination. Talbott found a 2.5-

millimeter anal tear, which she testified would be extremely painful to S.L. and was consistent with

anal penetration. Talbott also found the tissue surrounding S.L.’s hymen to be red and tender. When

Talbott questioned S.L., S.L. stated that “Uncle Fred” put his “thingy” on her “booty” and her

“peepee,” that he had been hitting her, and that he had done this since January “at his house and

Grandma’s.” During the exam, Talbott showed S.L. a diagram of a female child’s body to determine

                                                  3
what words S.L. used to identify various body parts; S.L. called the anal area “booty” and the vaginal

area “peepee.” When asked what the penis is called, S.L. responded “thingy.” The examination was

consistent, in Talbott’s opinion, with the history of events that S.L. related to her.

               At trial, Talbott testified that passing hard stool could possibly cause a tear similar

to the 2.5-millimeter one found during her examination of S.L. However, Talbott further testified

that S.L. told her that she had not defecated that day and that Talbott had indicated that fact on the

examination report admitted into evidence.

               S.L. testified at trial and said that Abbott hurt her, that he took her clothes off, and

that he put his “thingy” in her “booty” while on top of her. She identified Abbott during the trial.

S.L. also corroborated Talbott’s testimony about the words she used when referring to private parts.

She testified that she was scared, and when questioned by counsel about what frightened her, she

pointed directly at Abbott. Both Janelle and William testified to S.L.’s change in behavior after the

incident, noting that it had turned particularly negative toward Abbott and that her personality had

generally gone from spunky to downtrodden.

               Charlotte, the mother of both William and Abbott, testified at trial that she had

spoken to Abbott about the incident with S.L. while he was in jail. According to Charlotte, she

asked Abbott if he had sexually assaulted S.L. and he responded, “Mommy, I don’t remember.”

               Abbott attempted to advance a defense based on the fact that he and Janelle were in

a sexual relationship, suggesting that William, being the estranged husband, would have a motive

to fabricate his testimony to get revenge on Abbott. Abbott questioned William extensively about

his knowledge of the sexual relationship between Abbott and Janelle, including how and when he

found out about it. Abbott also attempted to emphasize on cross-examination that William often had

                                                  4
to sleep in the same trailer as Abbott and Janelle while they shared a bed. Abbott, however, was

unable to elicit any further evidence from the witnesses to support his theory beyond the fact that

William was aware of the sexual relationship between his wife and Abbott. On direct examination

by the State, William indicated that given the circumstances of his separation from Janelle, he did

not care that she was seeing his half-brother.


                                           DISCUSSION

               Abbott argues on appeal that the evidence that was presented at the trial is factually

insufficient to support the jury’s guilty verdict. Abbott contends that S.L.’s testimony was so

inconsistent that it was insufficient to allow a reasonable jury to find him guilty beyond a reasonable

doubt. He also urges that because the other witness to the alleged act, William, was not in a position

to positively identify the victim and gave a version of events too incredible to believe, his testimony

was insufficient to allow a reasonable jury to find him guilty beyond a reasonable doubt.

               A factual-sufficiency review requires this Court to view all the evidence in a neutral

light, favorable to neither the verdict itself nor any of the parties, and to determine whether the

verdict is clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 6–7 (Tex. Crim. App. 2000)

(quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)).                 To make this

determination, we must perform a two-part test. We first look at the evidence presented in support

of the guilty verdict and reverse only if the evidence “is so weak as to be clearly wrong and

manifestly unjust.” Id. at 11. “This is the most equitable approach, especially given the fact criminal

defendants are not under any obligation to present evidence on their behalf and usually rely, instead,

on forcing the State to prove its case beyond a reasonable doubt.” Id.


                                                  5
                If the evidence that tends to prove the verdict is sufficient standing alone, we then

compare it with the evidence against the verdict, id. at 7, and reverse only if after the comparison the

verdict “is against the great weight and preponderance of the available evidence,” id. at 11. This

portion of the test is applicable “in the event a defendant does muster contrary evidence,” giving the

defendant a second ground for factual insufficiency. Id.

                Appellate courts must always be mindful of the deference that we must give to the

jury’s original determinations. The mere fact that an appellate court would have acquitted based on

the evidence does not mean that it can set aside the conviction. Watson v. State, 204 S.W.3d 404,

417 (Tex. Crim. App. 2006). An appellate court also cannot order a new trial simply because it

would have resolved an apparent conflict in the evidence differently than the jury. Id. Instead, the

“great weight and preponderance” of the record evidence must objectively contradict the jury’s

verdict before an appellate court can grant a remand of the cause. Id. Additionally, an appellate

court must respect the jury’s determinations of what weight to give conflicting testimonial evidence

“because resolution often turns on an evaluation of credibility and demeanor, and those jurors were

in attendance when the testimony was delivered,” unlike the appellate court, who reviews a cold

record. Johnson, 23 S.W.3d at 8.


Evidence Supporting the Verdict

                On appeal Abbott makes several attacks on the sufficiency of the State’s evidence.

Abbott first attacks the credibility of S.L.’s testimony because it is inconsistent with a prior statement

admitted into evidence. Specifically, S.L. testified at trial that Abbott put his “thingy in her booty,”

but Talbott testified that during her examination S.L. stated that Abbott put his “thingy on her


                                                    6
booty.” (Emphases added.) The jury is the sole determiner of the weight and credibility given to

witness testimony. Johnson, 23 S.W.3d at 7 (citing Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim.

App. 1996)). We must defer to the jury’s determinations of credibility unless the record clearly

indicates that a different result is appropriate, id. at 8, and this minor difference in S.L.’s statements

does not rise to such a level.

                Abbott further attempts to discredit S.L. by claiming that S.L.’s parents erroneously

thought that he sexually assaulted S.L. and that S.L., being an impressionable child, was affected by

their anger and simply started repeating what she thought she was supposed to say. This is, at best,

another credibility argument. The jury seems to have considered S.L. to be a credible witness, and

nothing in the record clearly and objectively indicates that she was merely repeating

her parents’ impressions.

                Finally, Abbott attempts to discredit William’s testimony. Specifically, Abbott argues

that William’s testimony that he saw what he thought was his daughter being molested but did not

intervene is not believable. William did, however, offer an explanation at trial of why he did not

intervene, an explanation that seems to have been accepted by the jury. In an attempt to support his

assertion of incredibility, Abbott advances the theory that due to Abbott’s sexual relationship with

William’s wife, William had a motive to fabricate his testimony. This theory is not supported by the

record. While the record does show that Abbott was in a sexual relationship with Janelle, it also

shows that William regularly slept in the same dwelling as Abbott and Janelle without any evidence

of animosity toward either of them. In fact, the only domestic strife introduced in the record was

between Abbott and Janelle. Abbott failed at trial to elicit any testimony from William or any of the



                                                    7
other witnesses that William had a vendetta against Abbott. Thus, there is no record evidence

suggesting that William had any motive to fabricate his story.

               A minor complainant’s testimony is, by itself, factually sufficient to support a

conviction of aggravated sexual assault.3 Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1)

(West 2005); Perez v. State, 113 S.W.3d 819, 837–38 (Tex. App.—Austin 2003, pet. ref’d). In this

case, not only did the minor complainant testify but other witnesses also corroborated S.L.’s

testimony. William testified that he witnessed Abbott naked on top of what appeared to be a child.

Janelle testified that when she reached the trailer moments later, only two people were present—her

daughter S.L. and Abbott—and that S.L. said that her bottom hurt. Talbott testified that her

examination of S.L. revealed a 2.5-millimeter anal tear and red, tender flesh surrounding S.L.’s

hymen, trauma consistent with the sexual assault that S.L. reported to her. Janelle and William

further testified to the personality change of their daughter after these events. Even if we were to

agree with the credibility attacks that Abbott made toward his half-brother’s testimony, the testimony

of Janelle and Talbott still corroborates S.L.’s testimony.

               The jury appears to have determined that S.L.’s testimony was credible. Combining

that testimony with the corroborating physical and testimonial evidence, we cannot say that the

evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust.




       3
          S.L. reported the sexual assault to someone else the same day that it occurred, well within
the year required for adult sexual assault victims. Because she was a child, though, she was not
bound by this requirement. See Tex. Code Crim. Proc. Ann. art. 38.07(b)(1) (West 2005).

                                                  8
Evidence Against the Verdict

               Because the evidence supporting the verdict is sufficient standing alone, we must now

compare it with the evidence against the verdict. Evidence that goes against the verdict includes

Nurse Talbott’s testimony that S.L. stated that Abbott put his “thingy on her booty”4 and Talbott’s

admission that the 2.5-millimeter anal tear could have possibly been caused by passing hard stool.

Abbott would have us prefer this evidence over S.L.’s testimony that she was penetrated and

Talbott’s testimony that S.L. did not defecate that day, but we are unable to do so as only the jury

can resolve apparent conflicts in the evidence. See Watson, 204 S.W.3d at 417. Abbott emphasizes

that Talbott’s medical examination did not support S.L.’s statements during the examination that the

abuse had happened over a period of months or that Abbott had hit her. However, Talbott also

testified that her examination did not necessarily rule out a continuing course of abuse or the

possibility that Abbott had struck S.L. on the day of the examination.

               Abbott further attacks S.L.’s credibility on the basis of William’s testimony that when

he initially asked S.L. about the incident, she told him that Abbott had not done anything to her and

that she only stated that Abbott had hurt her after William asked a second time a few moments later.

However, S.L.’s credibility is bolstered by the consistent statements that she made to both her mother

and Nurse Talbott. The jury apparently found S.L. to be a credible witness, and we must defer to the



       4
           While simple contact is sufficient to support a finding of aggravated sexual assault of a
child, see Tex. Penal Code Ann. § 22.021(a)(1)(B)(iv) (West Supp. 2006), the indictment against
Abbott charged penetration and did not include a charge of simple contact. Thus in this case, a
statement alleging contact but not alleging penetration would go against the verdict.

                                                  9
jury’s determination because the record does not clearly indicate that a different result is appropriate.

See Johnson, 23 S.W.3d at 8.

                Upon review, the evidence against the verdict carries very little weight in light of the

entire body of evidence introduced at trial. After comparing the evidence against the verdict with

the significant quantity of record evidence in favor of the verdict, we conclude that the greater weight

and preponderance of the evidence clearly supports the verdict. In light of this conclusion, the

verdict must be upheld. See Watson, 204 S.W.3d at 417.

                Because the evidence in favor of the verdict is sufficient to convict by itself and

greatly outweighs the evidence against the verdict, we overrule Abbott’s point of error.


                                           CONCLUSION

                With Abbott’s only point of error overruled, we affirm the judgment of conviction.




                                                Diane Henson, Justice

Before Chief Justice Law, Justices Puryear and Henson

Affirmed

Filed: August 28, 2007

Do Not Publish




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