      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-02-00371-CR



                                 Terry Michael Crum, Appellant

                                                  v.

                                   The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
           NO. 005450, HONORABLE FRED A. MOORE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found appellant Terry Michael Crum guilty of two counts of aggravated sexual

assault of a child and one count of indecency with a child by contact. Tex. Pen. Code Ann. §§ 21.11,

22.021 (West 2003). The district court assessed sixty-year prison terms for the sexual assaults, and

a twenty-year prison term for the indecency. In his only point of error, Crum urges that the evidence

is factually insufficient to sustain the jury’s verdict of guilt. We will overrule this contention and

affirm the conviction.

               A factual sufficiency review asks whether a neutral review of all the evidence, both

for and against the finding of guilt, demonstrates that the proof of guilt is either so obviously weak

or so greatly outweighed by contrary proof as to undermine confidence in the jury’s determination.

See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Due deference must be accorded the
fact finder’s determinations, particularly those concerning the weight and credibility of the evidence,

and the reviewing court may disagree with the fact finder only when the record clearly indicates that

such a step is necessary to prevent a manifest injustice. Id. at 9. A verdict may be set aside only if

a finding of guilt beyond a reasonable doubt is clearly wrong and unjust. See Clewis v. State, 922

S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.—Austin

1992, pet. ref’d, untimely filed).

               The complaining witness, who was eighteen years old at the time of trial in May 2002,

testified that her mother and father separated during the summer following her sixth grade year. The

cause of the separation was, at least in part, her mother’s relationship with Crum. Crum, who was

divorcing his own wife, came to live with the complainant and her mother after the complainant’s

father moved out of the house.

               One night the complainant left her bedroom to get a glass of water. She saw Crum

and her mother on the living room floor engaged in sexual intercourse. Her mother was blindfolded.

The complainant returned to her bedroom, thinking she had been unseen. Later that night, however,

she was awakened by Crum kissing her and touching her breasts and genitals. When she protested,

Crum told her to “shut up” and “do it.” Crum removed the complainant’s clothing and instructed

her to lie on top of him in the “sixty-nine” position. He placed his mouth on her genitals and

penetrated her with his tongue while putting his penis in her mouth. This activity ended when Crum

ejaculated. Thereafter, Crum often had the complainant “do the sixty-nine” or masturbate him when

her mother was out of the house.




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               Crum sometimes had the complainant hide behind a couch in the living room and

watch him have intercourse with her mother, who was always blindfolded. Crum had two dildos

which he would insert in her mother’s vagina or mouth. Crum also tried to use the dildos with the

complainant, but she refused to allow it. One day when her mother was out shopping, Crum sat

beside the complainant on the couch, began to touch her, and eventually attempted to penetrate her

vagina with his penis. She felt a sharp pain and asked him to stop, which he did. He then got a

“sweeper broom” and attempted to penetrate her with the handle. This also hurt and he stopped

when she cried out.

               The complainant testified that Crum had a yellow and white spray can with what she

described as a straw coming out of the nozzle. He once sprayed the contents of the can into her

mouth. It tasted odd, and made her feel sleepy.

               The complainant told her mother “that things were happening that weren’t supposed

to with Michael, that he was touching me.” Her mother “just kind of looked at me weird” and “just

chuckled and . . . said that, you know, that I shouldn’t say anything like that.” Crum had warned the

complainant that he would hurt her or her mother if she revealed what was happening, and she made

no other outcry at that time.

               The complainant’s mother suffered from epilepsy and took drugs to control her

seizures. Her seizures became worse after the complainant’s father left. She would often forget to

take her medicine, and Crum “would give her too much or not enough, and then she had more

seizures on the floor.” The complainant would sometimes come home from school to find her

mother wandering about the house naked or in her underwear. Finally, the complainant called her


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father and reported her mother’s condition. Her father came to the house and took her mother to a

doctor. He also went to the police to report what he believed might be criminal mistreatment of his

wife by Crum. Although the complainant also spoke to the police, she did not report Crum’s sexual

misconduct with her at this time.

               The complainant’s father ordered Crum out of the house and moved back in with the

complainant and her mother. He found two pornographic videotapes and two dildos in the house

which he unsuccessfully tried to give to the police. He eventually hid them and gave them to the

police after the complainant made her outcry several years later. The complainant identified the

dildos at trial as the ones Crum used with her and her mother.

               After returning to the home, the complainant’s father noticed a change in the

relationship between his wife and daughter. The complainant’s behavior had also changed. She

would not sleep in pajamas, but wore her clothes to bed. She also neglected her personal hygiene,

leaving dirty underwear and used feminine hygiene products scattered about her bedroom and

bathroom. By the time she was sixteen, the complainant’s behavior was such that her parents

decided to relinquish custody to Child Protective Services (CPS). Based on information received

from her parents, CPS initially classified the complainant as a “level five” child, indicating that she

was seriously disturbed. However, after she was placed in the Settlement Home, a residential

facility, the complainant was quickly reclassified as “level four.” The complainant did well in CPS

care and was eventually reduced to a “level two,” which meant she could be placed in a foster home.

Although she briefly lived with a foster family, she chose to return to a group house to live. When

she turned eighteen, the complainant voluntarily left CPS care while she completed high school.


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                While living in the Settlement Home, the complainant began having disturbing

dreams that reminded her of Crum’s sexual abuse. In June 2000, she told her house supervisor what

Crum had done to her. This led to a police investigation culminating in Crum’s arrest and

prosecution. The complainant was examined by a physician, but due to the passage of time the

examination was normal and neither corroborated nor contradicted the complainant’s accusations

against Crum.

                In his own testimony, Crum acknowledged having a sexual relationship with the

complainant’s mother while he lived in their house. He denied engaging in any sexual conduct with

the complainant.

                Crum’s argument in support of his claim that the evidence is factually insufficient is

nothing more than an attack on the complainant’s credibility. He points out that she had been

diagnosed with “conduct disorder,” attention deficit hyperactivity disorder, and fetal alcohol

syndrome. He also points to the complainant’s own admission that she had a reputation for

dishonesty. Other evidence suggests, however, that the diagnoses cited by Crum were preliminary

and based on information obtained from the complainant’s parents. The diagnoses changed after the

complainant was observed by CPS workers. Anna Warde, one of the CPS caseworkers, testified that

the complainant was “a model child.” Warde stated that the complainant was a “typical teenager”

and “lied quite a bit” about things such as smoking cigarettes and leaving school, but she “didn’t lie

about the important stuff.” Warde believed that “she was a very trustworthy child.”

                Crum cites testimony about the complainant’s “atrocious hygiene habits” as evidence

of her emotional disturbance. But Dr. William Carter, a psychologist, testified that such behavior


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was common in sexually abused children. Carter also testified that a delayed outcry, another factor

cited by Crum as discrediting the complainant’s testimony, is common among abused children.

                Crum complains that the complainant was uncertain as to the date of the alleged

abuse. The indictment alleged that the crimes were committed on or about July 1 and September 1,

1994. The complainant testified that Crum moved to her house in July 1995. The complainant’s

father and Crum himself testified that he lived with the complainant’s mother in July and August

1996. But while the complainant may have been mistaken as to the year, she was consistent in

saying that the abuse took place during the time Crum was living with her mother, after her parents’

separation.

                Crum refers us to his testimony that he takes medication for a heart condition which

reduces his ability to achieve and maintain an erection. He urges that the complainant’s “allegations

of near-constant sex with a middle-aged man on heart medication are bizarre and improbable.” He

points to the absence of physical evidence and to the State’s failure to call the complainant’s mother

to testify.   And he asks, “[H]ave you ever heard of the sort of ‘spray’ described by [the

complainant]?”

                It is commonly and accurately said that a trial jury is better able to judge the

credibility of witnesses than is an appellate court having only a cold record to review. For this

reason, an appellate court conducting a factual sufficiency review must give particular deference to

a jury’s determinations regarding the weight and credibility of the testimony. Johnson, 23 S.W.3d

at 9. Having reviewed the record as a whole, and giving the jury’s verdict the deference it is due,

we conclude that the finding of guilt was not manifestly unjust.


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              We overrule Crum’s factual sufficiency challenge and affirm the judgment of

conviction.




                                           Bea Ann Smith, Justice

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

Affirmed

Filed: July 11, 2003

Do Not Publish




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