      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-02-00779-CR



                                    David Gosnell, Appellant

                                                 v.

                                  The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
          NO. 9024185, HONORABLE FRED A. MOORE, JUDGE PRESIDING



                            MEMORANDUM OPINION


               David Gosnell appeals from his conviction for the felony offenses of aggravated

sexual assault of a child, indecency with a child by contact, and indecency with a child by exposure.

See Tex. Pen. Code Ann. §§ 22.021, 21.11(a)(1), (2) (West 2003). After a jury trial, the court

assessed sentence at imprisonment for twenty-five years, fifteen years, and ten years respectively.

In one issue on appeal, appellant contends that “the jury erred in finding appellant guilty beyond a

reasonable doubt.” We will affirm the conviction.


                              Factual and Procedural Background

               In September 2001, teacher Kimberly Bird received information from Kathleen Eaton,

the grandmother of K.A., the complainant. That information led Bird, who had formerly conducted
forensic interviews for the Austin Police Department, to suspect sexual abuse. She received Eaton’s

permission to talk to K.A. about that subject. The next day, during their conversation, Bird noticed

that K.A. was very nervous as she told Bird that appellant had touched her “down there” and showed

her his “thing.” K.A. said this happened while her mother was sleeping, snoring in the next room.

K.A. also said that appellant would sometimes come into the bathroom and “rub her chest.” She said

appellant touched her more than once, and also said that she feared being “whipped” by appellant

if she told.

               K.A., the complaining witness, was eleven years old at the time of trial. The incidents

occurred in the summer of 2001, when she was ten. K.A. testified that appellant touched her

between the legs with his “dick” under her clothes. He also touched her breast with his penis, which

scared her. When she tried to get away, he backed her into a closet. Her mother was snoring in her

own room while these incidents occurred. K.A. also said that appellant had hit her with a belt in the

past, and threatened to do so if she told her mother what was happening.

               Although no court order was in place concerning custody, K.A. lived with her

grandmother, Kathleen Eaton. Eaton testified that K.A. kept waking up crying and suffered a

number of symptoms such as earaches and headaches, but the doctor could not find any illness. She

found K.A. masturbating a lot, and tried to redirect her into going outside and playing with other

children. K.A. became reluctant to visit her mother and appellant on weekends.

               A Child Protective Services (CPS) caseworker, Ayesha Anthony, testified that

Stephanie Gosnell, K.A.’s mother, was indifferent to K.A. She also said that there were several




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occasions during Gosnell’s visits when Gosnell was seen whispering to K.A. Anthony intervened

because she was afraid that Gosnell might be trying to pressure K.A. into recanting the allegations

against appellant.

                Sharon Soliz, a detective with the Austin Police Department, investigated the case

and concluded charges should be filed. She became concerned that Cindy Mock, a cousin of

appellant’s, was talking to K.A. The Department has a general policy of allowing a child victim’s

relatives to listen to the child, but not to question or “cross-examine” her in order to avoid suggesting

anything to the child that would influence her later testimony. Because of Mock’s relationship to

appellant, Soliz was concerned that Mock would try to make K.A. feel guilty about what was going

to happen to appellant so that she would change her story. Soliz was concerned enough to warn

Mock that witness tampering was a crime.

                William Carter, a psychologist, testified to the general dynamics of sexual abuse

situations. Matthew Ferrara, a forensic psychiatrist, testified about interviewing appellant and

administering certain psychological tests to him.1 He said that appellant told him about an incident

when appellant inadvertently exposed his penis to K.A. through a slit in his boxer shorts. Appellant

also told him that he “wrestled” with K.A., but had never had any kind of sexual contact with her.

He said he wrestled and tickled “all the kids.”




   1
      The tests were actually administered in connection with CPS concerns about custody of the
children. Ferrara was not permitted to testify about the test results at trial.

                                                   3
               Stephanie Gosnell, K.A.’s mother, testified for the defense. She said that the alleged

crimes could not have occurred because appellant was never alone with K.A. The only incident of

“exposure” she could recall was a time when appellant spanked K.A. while he was wearing boxer

shorts and his penis showed through the slit in the boxers. On cross-examination, Gosnell said that

after her children were placed in the custody of CPS, a caseworker instructed her to stop ignoring

K.A. during her parental visits; Gosnell admitted that she told the caseworker that she wanted to give

up K.A. but keep her other three children. Gosnell was not married to appellant at the time of the

events with K.A. but later married him. At the time of trial, she had surrendered custody of all four

of her children.

               Appellant’s cousin, Cindy Mock, also testified for the defense. She said that she and

appellant had “grown up together” in that their grandmother took care of them during the day. She

said that K.A. recanted her allegations during a phone conversation that Mock taped. Mock first

talked to Eaton, asking her if she would be interested in getting full custody of K.A. in exchange for

K.A. “telling the truth if the allegations were a lie.” Eaton then allowed Mock to talk to K.A. At

first, K.A. stuck to the same story that appellant had placed his “thingy” in her. Then Mock

explained to K.A. that appellant had never “hit on” Mock even though she had been a model, and

told K.A. that she, Mock, “didn’t live too far from K.A.” In response to Mock’s questions whether

K.A. made up the allegations, K.A. answered, “Uh-huh, uh-huh,” seemingly recanting her

allegations. On cross-examination, Mock admitted that she pressured K.A.




                                                  4
                                             Discussion

               In one issue on appeal, appellant contends that “the jury erred in finding appellant

guilty beyond a reasonable doubt.”2 The standard for reviewing the legal sufficiency of the evidence

is whether, viewing the evidence in the light most favorable to the jury’s verdict, any rational trier

of fact could have found beyond a reasonable doubt all the essential elements of the offense charged.

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App.

1996). All the evidence that the jury was permitted to consider properly or improperly must be taken

into account in determining the legal sufficiency of the evidence. Garcia v. State, 919 S.W.2d 370,

378 (Tex. Crim. App. 1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). On

appeal, we do not reevaluate the credibility of the witnesses or realign, disregard, or weigh the

evidence. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). Every fact need not

point directly and independently to the defendant’s guilt. Vanderbilt v. State, 629 S.W.2d 709, 716

(Tex. Crim. App. 1981). A conclusion of guilt can rest on the combined and cumulative force of all

incriminating circumstances. Connor v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001);

Vanderbilt, 629 S.W.2d at 716.

               To determine factual sufficiency, we view the evidence in a neutral light and set aside

the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong

and unjust. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We must review the evidence


   2
      Although appellant appears just to raise a legal sufficiency issue, the relief requested (only a
remand for new trial) and the reliance on the evidence presented by defendant as outweighing the
State’s evidence, are more relevant to a factual sufficiency issue. Accordingly, in the interest of
justice, we consider both legal and factual sufficiency. The State’s brief addresses both aspects.

                                                  5
weighed by the jury tending to prove the existence of the elemental fact in dispute and compare it

to the evidence tending to disprove that fact. Id. The appellate court may find either that the State’s

proof of guilt was so obviously weak as to undermine confidence in the jury’s determination or that

the finding of guilt was against the great weight and preponderance of the evidence. Id. at 11. When

the defendant proffers contrary evidence, we consider whether the proof of guilt, although adequate

if taken alone, is greatly outweighed by the defendant’s evidence. Id. However, a factual sufficiency

review must be appropriately deferential to avoid substituting our judgment for that of the jury.

Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). Unless the available record clearly

indicates a different result is appropriate, an appellate court must defer to the jury’s determination

concerning what weight to give to contradictory testimonial evidence because resolution often turns

on an evaluation of credibility and demeanor. Johnson, 23 S.W.3d at 8. We are not free to reweigh

the evidence, but must exercise our jurisdiction only to prevent a manifestly unjust result. Id.

               Appellant argues that the testimony of Gosnell and Mock shows the insufficiency of

the State’s case. Gosnell testified that K.A. and appellant were never alone. However, K.A. did not

allege that the incidents happened while Gosnell was absent but while Gosnell was asleep, as shown

by her snoring. Gosnell admitted that with a newborn infant sleeping in her room, her sleep was

disrupted, so the jury could have believed K.A.—her mother was sleeping during these incidents.

Given Gosnell’s testimony that she wanted to surrender custody only of K.A., a rational jury could

have inferred that Gosnell was angry with K.A. because her allegations resulted in appellant going

to jail, and that Gosnell had a motive to lie in order to free her husband.




                                                  6
                Mock testified about K.A.’s recantation. The tape of her conversation with K.A. was

played to the jury. However, even when a recantation is supported by an affidavit, which this one

was not, the jury is still entitled to disbelieve the later statement and accept the earlier testimony as

true. See Banda v. State, 727 S.W.2d 679, 682 (Tex. App.—Austin 1987, no pet.). The jury could

have believed that Mock pressured the child into agreeing with Mock’s version of events. (In fact,

the jury may well have believed that Mock essentially threatened K.A. by telling her that Mock

“didn’t live too far from [her].”) The jury also knew that Mock had been warned about witness

tampering.

                Viewing the evidence in the light most favorable to the verdict, a rational trier of fact

could have found appellant guilty beyond a reasonable doubt. K.A. testified about appellant’s acts.

The jury was not obligated to believe the explanation offered by K.A.’s mother, and it was entitled

to believe the first version of K.A.’s story that she told to her teacher and on the witness stand. We

do not reevaluate the credibility of the witnesses or reweigh the evidence. See Adelman, 828 S.W.2d

at 421.

                In viewing the evidence in a neutral light, we hold it factually sufficient. In essence,

appellant asks that we believe his version of events, not the State’s. The jury, as the judge of the

credibility of the witnesses could have believed Gosnell and Mock were solely interested in

protecting appellant and found their credibility wanting. We find nothing in the record that would

alter our deference to that determination. See Johnson, 23 S.W.3d at 8. We do not conclude that the

finding of guilt was based on obviously weak evidence or was against the great weight and

preponderance of the evidence. Id. at 7.

                                                   7
              We overrule appellant’s sole issue and affirm the conviction.




                                            Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: August 14, 2003

Do Not Publish




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