Opinion filed January 30, 2009




                                               In The


   Eleventh Court of Appeals
                                            ____________

                                      No. 11-07-00231-CR
                                          __________

                           PATRICK CHARLES LEE, Appellant

                                                  V.

                                STATE OF TEXAS, Appellee


                             On Appeal from the 238th District Court

                                      Midland County, Texas

                                  Trial Court Cause No. CR30373


                              MEMORANDUM OPINION

          Patrick Charles Lee was indicted on two counts of aggravated sexual assault of a child. On
each count, the jury convicted appellant and made an affirmative finding that appellant used a deadly
weapon to commit the offense.         The jury assessed appellant’s punishment at fifteen years
confinement on each offense, and the trial court ordered the sentences to run consecutively. We
affirm.
          In his first and second issues on appeal, appellant argues that the evidence is legally and
factually insufficient to support his conviction for aggravated sexual assault of a child. In order to
determine if the evidence is legally sufficient, we must review all of the evidence in the light most
favorable to the verdict and determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307
(1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). To determine if the evidence is
factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State,
204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477
(Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v.
State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.
Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict
is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against
the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15;
Johnson, 23 S.W.3d at 10-11. We review the factfinder’s weighing of the evidence and cannot
substitute our judgment for that of the factfinder. Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at
135. Due deference must be given to the jury’s determination, particularly concerning the weight
and credibility of the evidence. Johnson, 23 S.W.3d 1; Jones v. State, 944 S.W.2d 642 (Tex. Crim.
App. 1996). This court has the authority to disagree with the factfinder’s determination “only when
the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.”
Johnson, 23 S.W.3d at 9.
        Count One of the indictment alleged that appellant committed aggravated sexual assault by
causing “the penetration of the female sexual organ of [the victim] by the sexual organ of
[appellant].” Count Two alleged that appellant committed the offense by causing “the penetration
of the anus of [the victim] by the sexual organ of [appellant].” The victim (appellant’s stepdaughter)
testified that she was fourteen years old at the time of the offense. On the day of the offense, the
victim stayed home from school because she was not feeling well. The victim testified that she was
in her room watching television and that appellant came into her room and watched television with
her. Appellant started “wrestling” with the victim in her room. The victim left the room and went
to the bathroom. When she returned, appellant pulled out a knife.
        The victim testified that appellant put the knife against her neck and instructed her to take
off her clothes. The victim stated that she took off her clothes because she was afraid appellant


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would hurt her if she did not comply. The victim said that appellant stacked three pillows on the end
of her bed and told her to lie over the pillows on her stomach. Appellant then penetrated the victim’s
vagina with his sexual organ. The victim testified that she kept screaming, “Daddy, why are you
doing this to me?”
       Appellant told the victim to stop screaming or he “was going to stick it in my anus.” The
victim continued to scream, and he penetrated her anus with his sexual organ. After the assaults,
appellant threw the victim’s clothes at her and told her to get dressed.
       The victim testified that she went to Planned Parenthood two days after the assault. She did
not tell anyone at Planned Parenthood about the assaults because she was afraid. She stated that she
did not truthfully answer the medical questionnaire from Planned Parenthood.
       The victim told her sister what appellant had done about a week after the offense. The
offense was then reported to the Midland County Sheriff’s Office. The victim was taken for an
examination at Midland Memorial Hospital. Cori Armstead testified that she conducted a sexual
assault exam on the victim. Armstead noted “redness to the hymenal edges, and her hymen was
irregular in shape.” Armstead testified that the irregularity and redness of the hymen were consistent
with the victim being penetrated by a penis. Armstead also found a healed abrasion on the victim’s
vaginal opening. Armstead testified that there was a healed abrasion on the victim’s anus that was
consistent with penetration by the male sexual organ. Armstead stated that her exam supported
sexual assault as reported by the victim.
       The victim’s sister, Ashley, testified that she took some items to the sheriff’s office because
she believed those items were evidence. One of the items was a pillow sham used by appellant. The
victim identified a picture of the pillow sham as being on one of the pillows appellant forced her to
lie over during the assault. The pillow sham was examined at the Texas Department of Public Safety
Lab in Lubbock. The pillow sham contained a semen stain. The DNA in the semen stain was
consistent with appellant’s DNA.
       Appellant stated that on the day of the offense the victim was home from school and that he
watched television with her. Although the victim said that appellant stabbed himself in the knee
after he assaulted her, appellant said he cut his leg with his knife while trying to cut computer cable.
The victim helped appellant bandage the wound. Appellant denied sexually assaulting the victim.


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       Appellant specifically argues in his first issue on appeal that the evidence is legally
insufficient to support his conviction in Count Two because there is no evidence that he penetrated
the victim’s anus at knifepoint. The victim testified that appellant held a knife to her neck and
instructed her to remove her clothes. She stated appellant penetrated her first vaginally and then
anally when she did not stop screaming. Appellant contends that the victim did not testify she was
in fear of the knife during anal penetration.
       Aggravated sexual assault may be committed if, in connection with a sexual assault, the
person “uses or exhibits a deadly weapon in the course of the same criminal episode.” TEX . PENAL
CODE ANN . § 22.021(a)(2)(A)(iv) (Vernon Supp. 2008); Chavez v. State, 721 S.W.2d 508, 509 (Tex.
App.—Houston [14th Dist.] 1986, no pet.). The State need only prove that the defendant exhibited
or used the weapon in connection with the sexual assault. Chavez, 721 S.W.2d at 509. Appellant
held a knife to the victim’s neck, forced her to undress, and then sexually assaulted her vaginally and
anally. The evidence is legally sufficient to find that appellant exhibited or used a deadly weapon
in connection with committing the aggravated sexual assault as alleged in Count Two of the
indictment. Appellant’s first issue is overruled.
       Appellant argues in his second issue on appeal that the evidence is factually insufficient to
support his conviction. The victim admitted that she did not truthfully answer the questionnaire from
Planned Parenthood that asked if she had been sexually abused. The victim further admitted that she
previously had sexual relations on two occasions with her former boyfriends. Appellant testified that
he did not sexually assault the victim. Although the victim’s mother testified that they had not had
sexual relations in years, appellant claims that his semen might have been on the pillow sham from
having sexual relations with the victim’s mother. Appellant contends that this evidence shows that
the jury’s verdict was manifestly unjust.
       The victim testified that appellant sexually assaulted her vaginally and anally after holding
a knife to her neck. She identified one of the pillow shams that appellant used during the assault;
it contained semen matching appellant’s DNA. The nurse who examined the victim testified that
the victim had healed abrasions consistent with vaginal and anal penetration.
       The jury was the sole judge of the credibility of the witnesses and the weight to be given their
testimony. TEX . CODE CRIM . PROC. ANN . art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979);


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Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000). The jury may choose to believe or
disbelieve all or any part of any witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.
Crim. App. 1986). We find that the evidence is factually sufficient to support appellant’s conviction
under both counts alleged in the indictment. Appellant’s second issue is overruled.
       In his third issue, appellant argues that the trial court erred in ordering that appellant’s
sentences on each count of aggravated sexual assault to run consecutively. The trial court’s decision
to order sentences to run consecutively will be reviewed under an abuse of discretion standard.
Nicholas v. State, 56 S.W.3d 760, 764-65 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). TEX .
PENAL CODE ANN . § 3.03(b) (Vernon Supp. 2008) provides that, if the accused is found guilty of
more than one offense arising out of the same criminal episode, “the sentences may run concurrently
or consecutively” if each sentence is for a conviction of an offense under TEX . PENAL CODE ANN .
§ 22.021 (Vernon Supp. 2008). It has long been recognized that, if the punishment assessed is within
the range of punishment established by the legislature under its constitutional authority, there is no
violation of the state constitutional provisions against cruel and unusual punishment. Baldridge v.
State, 77 S.W.3d 890, 893 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). Appellant “invokes
the proportionality principle for which the Eighth Amendment offers consideration to persons
sentenced in state court.”
       We recognize that the prohibition against grossly disproportionate punishment survives under
the Eighth Amendment of the United States Constitution apart from any consideration of whether
the punishment assessed is within the range established by the legislature. See Latham v. State, 20
S.W.3d 63, 68-69 (Tex. App.—Texarkana 2000, pet. ref’d). The Eighth Amendment, which is
applicable to the states by virtue of the Fourteenth Amendment, has been recognized as
encompassing a narrow proportionality principle. Robinson v. California, 370 U.S. 660 (1962). It
prohibits greatly disproportionate sentences. Weems v. United States, 217 U.S. 349, 371 (1910).
Punishment will be grossly disproportionate to a crime only when an objective comparison of the
gravity of the offense against the severity of the sentence reveals the sentence to be extreme.
Harmelin v. Michigan, 501 U.S. 957, 1004-06 (1991). Only if we infer that the sentence is grossly
disproportionate to the offense will we compare the sentence received to (1) sentences for similar
crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions. Id.


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       Appellant put a knife to his stepdaughter’s throat, forced her to remove her clothes, then
penetrated her vaginally and anally leaving abrasions. We do not find that punishment of two fifteen
year sentences is grossly disproportionate to the offense. The trial court did not abuse its discretion
in ordering the sentences to run consecutively. Appellant’s third issue on appeal is overruled.
       The judgment of the trial court is affirmed.




                                                               JIM R. WRIGHT
                                                               CHIEF JUSTICE


January 30, 2009
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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