                                   NO. 07-04-0390-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                   JANUARY 13, 2006

                          ______________________________


                            JEFFREY GRIMES, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 3RD DISTRICT COURT OF ANDERSON COUNTY;

                  NO. 26796; HONORABLE PAM FLETCHER, JUDGE

                         _______________________________


Before REAVIS and CAMPBELL and HANCOCK, JJ.


                                MEMORANDUM OPINION


       Following a plea of not guilty, appellant Jeffrey Grimes was convicted by a jury of

aggravated sexual assault of a child, enhanced, and punishment was assessed at 50 years

confinement. Presenting two issues, appellant maintains the evidence is legally and

factually insufficient to support his conviction. We affirm.
       When the victim, D.A., was nine years old, she confided in her older sister that

appellant, her stepfather, had sexually abused her. The sister told their mother, who

immediately took D.A. to a family physician.       Following an examination, the doctor

concluded there was evidence of digital penetration and suggested that Child Protective

Services be contacted.


       After D.A.’s mother contacted CPS, she and her three children went to stay with

friends and later moved into a shelter. D.A. was given a sexual assault exam which

revealed with medical certainty that she had suffered penetration over a period of time.

An initial interview was conducted by the director at the Crisis Center, and D.A. had

numerous sessions with one of the center’s counselors. She also was treated by a

psychologist.


       Several months after the allegations were made and an investigation had taken

place, D.A. recanted explaining she had lied to avoid doing chores and had hoped the

accusations would only result in a temporary separation from appellant. She claimed she

was lazy and tired of her mother and stepfather fighting. She was unaware that any legal

action would be taken.


       Although appellant couches his complaints in terms of sufficiency of the evidence,

by his arguments and authorities, he challenges the admissibility of D.A.’s outcry statement

when the State knew she had recanted the accusations. He also challenges admission

of portions of a videotaped interview of D.A.’s prior inconsistent statements. He contends

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D.A.’s prior inconsistent statements are not evidence of guilt and concludes that following

her impeachment, the evidence was insufficient to support the conviction. We disagree.


       Article 38.072 of the Texas Code of Criminal Procedure provides that a child’s

outcry statement is admissible as an exception to the hearsay rule if the requirements of

the statute have been met. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005).

In other words, hearsay admitted pursuant to an exception is considered substantive

evidence with some probative value. See Rodriguez v. State 819 S.W.2d 871, 873

(Tex.Cr.App. 1991). See generally Poindexter v. State, 153 S.W.3d 402, 409 n.23

(Tex.Cr.App. 2005) (quoting a law review article that the “best argument in favor of the

probative value of hearsay lies in the many exceptions to its exclusion.”) [Citations omitted].


       A witness’s prior inconsistent statement is admissible only for purposes of

impeachment unless it falls within a hearsay exception. Tex. R. Evid. 613(a). See Miranda

v. State, 813 S.W.2d 724, 735 (Tex.App.–San Antonio 1991, pet ref’d). Appellant suggests

that because the State was aware that D.A. recanted, it impeached her as a subterfuge for

getting her prior inconsistent statements before the jury. See Ramirez v. State, 987

S.W.2d 938, 944 (Tex.App.–Austin 1999, no pet.).


       After a hearing outside the jury’s presence, the trial court ruled that D.A.’s mother

would be permitted to testify as the outcry witness regarding her and her daughter’s initial

conversation about the abuse. She testified that during her initial conversation with D.A.,

she asked specific questions about the allegations. D.A. responded that appellant pulled

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her panties to the side and touched and rubbed her “down there.” Her mother immediately

suspected molestation and had D.A. examined by a family physician. He concluded there

was evidence of penetration and recommended CPS be contacted. She reported the

incident and also arranged for a sexual assault exam at the hospital.


      When D.A. testified, she admitted lying about being sexually abused by appellant.

She rationalized her conduct as an excuse to avoid chores and did not believe her

accusations would result in appellant being arrested. According to her testimony, after her

mother showed her a newspaper article that appellant had been indicted, she cried and

recanted. She did not like living in a shelter and missed her home and appellant. Her

siblings were also unhappy with their living arrangements. When questioned about the

abuse, D.A. denied statements she had made to the director at the Crisis Center during

the initial forensic interview and equivocated on many answers.


       The State asked for a recess and moved to show a videotape of the forensic

interview to illustrate D.A.’s prior inconsistent statements. After entertaining numerous

objections by defense counsel, the trial court ruled that any statements denied by D.A.

could be impeached by inconsistent statements made on the videotape. Otherwise, the

trial court sustained defense counsel’s objections and gave the jury a limiting instruction

that the videotape was for impeachment only and could not be used as proof of the

elements of the offense.




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       D.A.’s credibility was impeached at trial. Appellant maintains that D.A.’s prior

inconsistent and unsworn statements were the only evidence supporting the accusations

and without them, his conviction cannot stand. We disagree.


       Appellant was indicted for intentionally or knowingly causing digital penetration of

D.A.’s sexual organ. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i) (Vernon 2003). When

sufficiency of the evidence is challenged, we must first determine whether legally sufficient

evidence exists that would show beyond a reasonable doubt that the defendant committed

each element of the offense. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Cr.App. 1996).

In so doing, we examine the verdict, after viewing the evidence in the light most favorable

to the prosecution, to 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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Burden v. State, 55 S.W .3d

608, 612-13 (Tex.Cr.App. 2001). This standard is the same in both direct and circumstantial

evidence cases. Burden, 55 S.W.3d at 612-13. Substantive evidence with some probative

value, even if erroneously admitted, is, by itself, sufficient to support the jury’s verdict.

Rodriquez, 819 S.W.2d at 873-74.


       After conducting a legal sufficiency review under Jackson, we must determine, after

considering all the evidence in a neutral light, whether the jury was rationally justified in

finding guilt beyond a reasonable doubt.         Zuniga v. State, 144 S.W.3d 477, 484

(Tex.Cr.App. 2004). It is the exclusive province of the jury to determine the credibility of


                                             5
the witnesses and the weight to be given their testimony, and unless the record clearly

demonstrates a different result is appropriate, we must defer to the jury’s determination.

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


       D.A.’s mother testified that at first she believed her daughter had been molested by

appellant. According to the outcry statement, appellant pulled D.A.’s panties to the side

and touched and rubbed her private parts. Evidence of digital penetration and other

details, however, was not allowed as part of the original outcry statement. Thus, we must

look to other evidence to support appellant’s conviction for aggravated sexual assault.


       The family physician testified that D.A. told him appellant had inserted his fingers

into her vagina. He determined that D.A.’s hymen was open about a centimeter, which

was unusual for someone her age. The nurse who performed the sexual assault exam

also testified that the condition of D.A.’s hymen was consistent with her allegations. There

was medical certainty of digital penetration over a period of time. No objections were made

to the testimony of either witness; however, an exception to the hearsay rule exists for

medical diagnosis or treatment. See Tex. R. Evid. 803(4).


       D.A.’s mother testified that, although she loved her daughter, she knew she told lies.

She also testified that at an early age she discovered D.A. masturbating and believed that

caused the damage to her hymen. The nurse, however, testified the damage could not

have been caused by masturbating, bicycling, or a fall.



                                             6
       A counselor at the Crisis Center testified that according to his sexual inventory and

checklist for assessment, he did not suspect D.A. concocted the accusations. The director

at the Crisis Center testified that after D.A. recanted, she interviewed her again and found

her demeanor to be tense and her responses to be “monotone and robotic.”


       A psychologist, who was not allowed to offer an opinion on this particular case,

testified on motives for recanting. He explained that a child has a need to survive

regardless of the home environment. The credibility of an accusation increases when

spontaneous corrections are made during an interview rather than parroting or when sexual

details are given that are not age appropriate. Additionally, a jury can choose to disbelieve

recantation. See Chambers v. State, 805 S.W.2d 459, 461 (Tex.Cr.App. 1991) (en banc).


       Regardless of D.A.’s impeachment, there is sufficient evidence to support

appellant’s conviction. Issues one and two are overruled.


       Accordingly, the trial court’s judgment is affirmed.


                                          Don H. Reavis
                                            Justice


Do not publish.




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