             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                        NO. PD-1311-08



                           BRUNSHAE STEADMAN, Appellant

                                                 v.

                                   THE STATE OF TEXAS

              ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE TENTH COURT OF APPEALS
                             CORYELL COUNTY

      K ELLER, P.J., delivered the opinion of the Court in which M EYERS, K EASLER,
H ERVEY, H OLCOMB and C OCHRAN, JJ., joined. J OHNSON, J., concurred. P RICE and
W OMACK, JJ., dissented.



       The court of appeals in this case determined that the evidence was factually insufficient to

support one of appellant’s aggravated sexual assault convictions. We find that the review conducted

by the court of appeals failed to conform to the requirements of Clewis v. State1 and its progeny. We

reverse the judgment of the court of appeals and remand the case for further consideration.




       1
           922 S.W.2d 126 (Tex. Crim. App. 1996).
                                                                                    STEADMAN – 2

                                         I. BACKGROUND

        Appellant was convicted of two aggravated sexual assault offenses. One of the convictions

was for penetrating the complainant’s sexual organ with his finger; the other conviction was for

penetrating the complainant’s sexual organ with his sexual organ.2 The court of appeals affirmed

the conviction for the former offense, but it reversed the latter conviction for factual insufficiency.3

We set out verbatim the factual background recited by the court of appeals, but we italicize portions

of the recitation that, for reasons that will be given later, appear to be problematic:

        Steadman was the boyfriend of L.N.’s mother, Edwina. He often babysat L.N. and
        her two brothers when Edwina was out of the home. L.N. made an outcry of sexual
        abuse against Steadman to her grandmother, Mary. L.N. was four years old at this
        time.

        Mary discovered a “green and slimy” discharge in L.N.’s underwear and asked L.N.
        whether Steadman had touched her. L.N. stated that Steadman “laid down on top of
        me and played with me,” touched her “tutu,” meaning her vaginal area, and touched
        her with his penis “[d]own in her stride,” also meaning her vaginal area. She did not
        accuse Steadman of penetrating her with either his finger or his penis. L.N. had
        previously accused another man of “put[ting] his finger in her middle spot with her
        clothes on” and touching her without her clothes on, but the police were unable to
        locate the man. However, neither Edwina nor Mary had previously observed L.N.
        experience green discharge. Mary did recall a previous incident where L.N.
        complained of her “tutu” hurting and bleeding.

        Edwina took L.N. to the emergency room where she was examined by Annette
        Wendeborn and Dr. Barry Phillips. She told Wendeborn and Phillips that L.N. had
        a “greenish discharge,” itching, and redness. According to Wendeborn, these
        symptoms indicate a sexually transmitted disease and it is uncommon to see that type
        of discharge in a child L.N.’s age. Some sexual contact had to be involved. Dr.
        Phillips testified that L.N.’s exam revealed a green watery discharge, “mild reddish
        irritation,” and no “evidence of trauma.” He does not “routinely” see discharge from


        2
            He was sentenced to twenty years on each offense, to run concurrently.
       3
         Steadman v. State, 262 S.W.3d 401 (Tex. App.–Waco 2008). Though resolved in a single
opinion, the two convictions have separate cause numbers in the court of appeals. We granted
review only of the cause involving penetration of the victim’s sexual organ.
                                                                          STEADMAN – 3

a child who has never had a menstrual cycle or sexual intercourse. Other than a
sexually transmitted disease, L.N. could have had any number of bacterial infections
and the irritation could have been caused by using the restroom, bathing, or
scratching. Wendeborn and Phillips took a culture to determine the type of infection
involved.

Dr. Arundhati Rao’s lab tested L.N.’s specimen, which tested positive for gonorrhea.
The test was performed twice. Dr. Darren Hamm, L.N.’s primary care physician,
gave L.N. an injection to treat the infection. Although he did not make his own
diagnosis of gonorrhea, he testified that the infection in a child indicates “sexual
trauma, sexual abuse.” Deborah Kleypas, sexual assault nurse examiner, and Dr.
Pamela Greene subsequently performed a sexual assault examination of L.N., during
which L.N. had to be sedated. During the exam, Kleypas and Greene observed
V-shaped notches in L.N.’s hymen and posterior fourchette. According to Kleypas,
these findings are not “definitive proof of sexual abuse,” but could have resulted
from abuse and were consistent with the abuse that L.N. described. The notches were
the only signs of penetration. Pointing to specific parts on a body diagram, L.N. told
Kleypas that Steadman put his penis on her bottom and on her “tutu.”

Deputy Armando Paniagua spoke with Steadman who denied either having gonorrhea
or infecting L.N. with gonorrhea. Steadman consented, in writing, to be tested for
gonorrhea. Kleypas examined Steadman and obtained specimens for testing. She also
obtained a specimen from the husband of a woman who had babysat L.N. Steadman
told Edwina that he had taken a test for gonorrhea. Edwina testified that Steadman
asked what would happen if he tested positive, seemed “scared,” and did not want to
go to jail for something he did not do. He apologized to Edwina for whatever he had
done. Edwina found this apology unusual, as Steadman had never apologized in a
similar manner.

Dr. Rao’s lab tested Steadman’s urine specimen and urethral swab, both of which
tested positive for gonorrhea. Like L.N.’s test, Steadman’s test was also repeated.
The other man’s specimen tested negative. Dr. Rao testified that there was no way
the samples could have been switched.

Paniagua told Steadman that the test was negative and Steadman agreed to come to
the Sheriff's office to discuss it. Before taking Steadman’s written statement,
Paniagua informed Steadman that he actually tested positive. Steadman appeared
upset and surprised, began crying, and denied having an infection. He told Paniagua
that he touched L.N. by rubbing her sexual organ with his finger and penetrated her
with his finger under her clothing. In his statement, Steadman wrote, “I was playing
with my self and got cum on my finger, I was drunk at the time I touch [L.N.] with
my hand, I never did do anything other than that.” Steadman used gestures to show
Paniagua what he did to L.N. After writing his statement, Steadman denied doing
                                                                            STEADMAN – 4

anything to L.N. and stopped the interview.

Edwina was unaware that Steadman had gonorrhea and told Paniagua that she did not
believe Steadman had gonorrhea. Even after discovering that Steadman was infected,
she was surprised and did not believe it because she had never observed any
symptoms. Edwina previously had gonorrhea when pregnant with L.N. Greene
testified that a baby could contract gonorrhea during child birth, but the infection
would develop in the child’s eyes.

Kleypas testified that any object that passes the labia majora constitutes “penetrating
the female sexual organ” and does not “necessarily have to go in the vagina to be
penetration.” She further testified that “full penetration” by the male sexual organ is
difficult in a child L.N.’s age. There was no evidence of “full penetration” in L.N.’s
case. It is common not to find any injuries to the female sexual organ as a result of
sexual assault. She explained that gonorrhea is normally transmitted via genital to
genital contact, but penetration is not necessary. She could not definitively state that
L.N. was sexually abused and, other than the lab results, her examination of
Steadman did not reveal that he had gonorrhea.

Dr. Greene testified that gonorrhea can be found on the vagina even if the male
sexual organ rubs on the outside of the vagina. Gonorrhea can be transmitted by the
male sexual organ touching a child’s sexual organ. Greene was not one hundred
percent certain that gonorrhea could be transmitted by touching a finger with semen
on it to the child’s sexual organ; it would have to be a “large inoculum” and be
quickly placed on the child’s sexual organ. A child is more susceptible to infection;
adults may not have symptoms, but a child usually will. It is abnormal for a
four-year-old child to have a discharge; thus, if gonorrhea is detected, the child has
been sexually abused. A normal exam is common because a child’s vaginal opening
is too small for full penile penetration.

Dr. Robert Fader testified that adults can have gonorrhea without showing any
symptoms. It is unlikely that children will not exhibit symptoms. Gonorrhea could
be transmitted where a male has semen on his finger and then touches the female
sexual organ or rubs the outside of the vagina. Gonorrhea is not always the result
of sexual assault. Steadman’s and L.N.’s specimens were sent to the Center for
Disease Control for testing that could potentially link the two cases of gonorrhea.
However, the CDC never received L.N.’s specimen. Had the test been performed it
would have been definitive. Even had L.N.’s sample been received, the CDC had
indicated that it might not be able to extract enough DNA to properly perform the
test.

Edwina testified that L.N. struggles to discuss the offense, often changing the subject,
providing excuses, or expressing fear. According to Mary, L.N. is now moody and
                                                                                   STEADMAN – 5

       sometimes reacts in anger. L.N.’s counselor testified that L.N. exhibits signs of
       “agitation” and “avoidance” when discussing the offense.4

       In finding the evidence to be legally sufficient to show penetration by the appellant’s sexual

organ, the court of appeals observed that the complainant made various statements showing his

sexual contact with her: that appellant had touched her with his penis “[d]own in her stride,” that he

had “laid down on top” of her and “played with” her, and that he had put his penis on her “tutu.”5

The court of appeals also pointed to the fact that the complainant “suffered from a green discharge,

irritation, and injuries to her hymen and posterior forchette.”6 Further, the court explained that the

complainant and appellant both tested positive for gonorrhea, “which can be transmitted through

penile penetration.”7 The court concluded: “Because L.N.’s account need not be precise, the jury

could find penetration by sexual organ even though L.N. accused Steadman of placing his penis on

her vaginal area.”8

       After concluding that the evidence was legally sufficient, the court of appeals proceeded to

its factual sufficiency analysis, which consisted of the following paragraph:

       However, the evidence is not factually sufficient. The record indicates that gonorrhea
       can also be transmitted by the male sexual organ merely touching the outside of the
       female sexual organ, without the male sexual organ passing beyond the labia majora.
       A neutral review of the evidence establishes a touching between Steadman’s sexual
       organ and L.N.’s sexual organ, but does not establish an intrusion beyond the vaginal
       lips. Accordingly, we find the proof of guilt to be so weak as to render the jury’s


       4
           Id. at 404-06 (italics ours).
       5
           Id. at 407.
       6
           Id.
       7
           Id.
       8
           Id. (emphasis in original).
                                                                                   STEADMAN – 6

       verdict clearly wrong and manifestly unjust.9

       In a single issue presented in its petition for discretionary review, the State asks whether the

Court of Appeals erred in selectively examining the appellate record for evidence that was consistent

with a finding of factual insufficiency, rather than considering all the record evidence and all the

reasonable inferences to be drawn therefrom?

                                          II. ANALYSIS

       In a factual sufficiency review, the appellate court views the evidence in a neutral light and

asks whether the evidence supporting the verdict is so weak or so against the great weight and

preponderance of the evidence as to render the verdict manifestly unjust.10 Although a factual

sufficiency review authorizes an appellate court, to a very limited degree, to act as a “thirteenth

juror,” the appellate court must nevertheless give the jury’s verdict a great degree of deference.11 A

“high level of skepticism about the jury’s verdict” is required before an appellate court may reverse

due to factual insufficiency.”12 An appellate court may not find the evidence to be factually

insufficient merely because there are “reasonably equal competing theories of causation.”13 And a

factual sufficiency reversal certainly may not occur when the evidence actually preponderates in

favor of conviction.14 Before reversing a conviction on the basis of factual insufficiency, an


       9
            Id. at 407-08.
       10
            Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008).
       11
            Watson v. State, 204 S.W.3d 404, 416-17 (Tex. Crim. App. 2006).
       12
            Id. at 417.
       13
            Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001).
       14
            Watson, 204 S.W.3d at 417.
                                                                                     STEADMAN – 7

appellate court must detail all the relevant evidence and must explain in exactly what manner the

evidence is factually insufficient.15

        On its face, the court of appeals’s opinion may appear to comply with these requirements,

but a reading of the record reveals that the court of appeals has failed to detail all the relevant

evidence. Furthermore, the court appears to have failed to give appropriate deference to the jury.

        First, the court of appeals’s analysis seems to rest on an inaccurate understanding of

“penetration.” The expert witnesses testified that penetration was anything that passed the outer lips

of the female sexual organ (labia majora). Kleypas and Dr. Greene both indicated that placing an

object in between the outer lips necessarily constitutes passing the outer lips, and thus constitutes

penetration. Further, Kleypas testified that sexual perpetrators often get past the outer lips by

“rubbing up and down.” She also explained that, for girls between the ages of three and five years

who have suffered sexual abuse, it is “probably ninety percent or greater that something has passed

the labia majora.” The frequency with which perpetrators pass the vaginal opening, though, is “very

much less” because the vaginal opening is so small. Dr. Greene explained that “a male penis can’t

get into the vagina without totally ripping it from – totally ripping it from the vagina all the way to

the rectum.” Responding to a hypothetical regarding the possibility of gonorrhea being transmitted

by semen contained on the perpetrator’s hand, Dr. Greene also suggested that placing an object



        15
           Id. at 414 (appellate court must explain “in exactly what way the State’s evidence, while
legally sufficient, is nevertheless too weak to withstand scrutiny, or in exactly what way it perceives
the conflicting evidence to preponderate against conviction” and appellate court must review all the
evidence in conducting its analysis); Cain v. State, 958 S.W.2d 404, 409-10 (Tex. Crim. App.
1997)(court of appeals ignored evidence that supported the jury verdict); Clewis, 922 S.W.2d at 135
(quoting Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986))(appellate court must “detail
the evidence relevant to the issue in consideration and clearly state why the jury’s finding is factually
insufficient”).
                                                                                   STEADMAN – 8

between the outer lips would necessarily be penetration:

       “[I]f you did it with your hand, you would have to put your hand between the labia
       and get on the mucus membrane, so that’s still sexual assault. You know, sexual
       assault is with a hand or a penis or an object, or whatever, so you would have to be
       putting your hand up inside past the lips up between the labia to get the inoculum on
       the mucus membrane, so either way it would be sexual assault.”16

       This testimony is consistent with prior caselaw from this Court. In Vernon v. State, we

agreed with the State’s contention that “tactile contact beneath the fold of complainants external

genitalia amounts to penetration within the meaning of the Aggravated Sexual Assault statute, since

vaginal penetration is not required, but only penetration of the ‘female sexual organ.’”17

       The court of appeals acknowledged that the complainant accused appellant of placing his

penis “down in her stride,” but then said that the complainant did not accuse appellant of penetrating

her with either his finger or his penis. It is true that the four-year-old complainant did not use the

word “penetration,” nor did she use any of the terms employed by the expert witnesses to refer to

various parts of the female sexual organ. But we would not expect a four-year-old to use the same

language used by adults, much less that used by expert witnesses.

       According to the court of appeals, Kleypas explained “that gonorrhea is normally transmitted

via genital to genital contact, but penetration is not necessary.” But Kleypas did not testify that

penetration of the female sexual organ was unnecessary. Rather, she explained that there does not

have to be “penetration of the vaginal opening.” As noted above, penetration of the female sexual

organ can occur without penetration of the vaginal opening. The court of appeals’s reference here

to the “vaginal opening” and earlier to the “vaginal area” suggests that the court may have associated


       16
            Emphasis added.
       17
            841 S.W.2d 407, 409-10 (Tex. Crim. App. 1992).
                                                                                  STEADMAN – 9

the vaginal opening with the entire female sexual organ, resulting in an mistaken understanding of

the expert testimony.

       Kleypas did testify that if semen contacts the mucus membranes of the inner lips, gonorrhea

can be transmitted. This testimony could be construed as implicit support for the notion that the

penis does not have to penetrate the female sexual organ so long as the semen does, but we find no

explicit testimony by Kleypas about gonorrhea being transmitted that way. In any event, Kleypas

did not say that gonorrhea could be transmitted simply by contact between the penis and the outside

of the female sexual organ.

       The court of appeals seems to have found significant Dr. Greene’s testimony that gonorrhea

can be transmitted even if the male sexual organ rubs on the outside of the vagina. But according

to the expert testimony, an object that rubs the outside of the vagina has necessarily penetrated the

female sexual organ.

       The court of appeals interpreted Dr. Greene’s testimony as saying that gonorrhea can be

transmitted by the male sexual organ touching a child’s sexual organ, but that conclusion

oversimplifies Dr. Greene’s testimony. Dr. Greene did affirm that gonorrhea could be transmitted

from “a male’s sexual organ on a child’s genitals” and that the disease could be transmitted without

semen, but she explained that a “skin to skin contact” would transmit the disease if the contact

occurs “on a mucus membrane.” She also explained that gonorrhea is “fairly hard to grow and

culture” and is transmitted “usually” by “direct contact” or from “mucus membrane to mucus

membrane.”

       The court of appeals acknowledged Dr. Greene’s testimony that she was not one hundred

percent certain that gonorrhea could be transmitted “by touching a finger with semen on it to the
                                                                                    STEADMAN – 10

child’s sexual organ.” But Dr. Greene also testified that there was no documentation in the literature

on such a thing happening and that whether or not such a thing was possible would be “conjecture.”

She further testified that only one case of transmission other than from the sexual organ of the actor

had been observed in the literature. In that instance, a microbiologist’s child ate the agar that the

gonorrhea was growing on.

        Further, though the court of appeals noted Dr. Greene’s testimony that the presence of

gonorrhea means that the child has been “sexually abused,” it seems to have discounted this

testimony in its analysis. Dr. Greene testified that, “If you see gonorrhea in a four-year-old child,

then you know she’s been sexually assaulted.” This statement was made sometime after Dr. Greene

specifically defined “[p]enetration in regards to sexual assaults . . . in the State of Texas” as

“penetration of the female sexual organ past the outer lips.”

        The court of appeals observed Dr. Greene’s testimony that a child is more susceptible to

infection, but it did not set forth the underlying reason for that susceptibility. Both Dr. Greene and

Dr. Fader testified that this increased susceptibility was due to differences in tissue on the inside of

the female sexual organ.

        The court of appeals also stated that Dr. Fader conceded the possibility that gonorrhea could

be transmitted by semen on a finger that touches the female sexual organ or rubs the outside of the

vagina. The actual wording of the questions Dr. Fader was asked was whether transmission could

occur by semen on a finger if it involved “rubbing it on a female’s genitals” or if the perpetrator

“inserts part of their [sic] finger into the vagina.” We also point out that the court of appeals did not

include Dr. Fader’s statements regarding gonorrhea being a “fastidious organism” that “would die

rather rapidly” outside the body. Transmission by semen would fail if the semen dried prior to the
                                                                                   STEADMAN – 11

touching. Dr. Fader explained that the disease organism needed a moist environment to grow. “We

don’t find it, for example, on our skin.”

       The court of appeals also noted Dr. Fader’s testimony that gonorrhea is not always the result

of sexual assault. But Dr. Fader’s statement came immediately after he was questioned about the

incident, noted above, regarding the microbiologist’s child.18 Dr. Fader expressed surprise that there

was a study about a child orally swallowing gonorrhea, but he acknowledged that it was medically

possible. It was immediately after that acknowledgment that Dr. Fader agreed that the transmission

of gonorrhea to a child at a time other than birth was not always the result of sexual assault.

       The court of appeals pointed to Dr. Fader’s testimony that the Centers for Disease Control

(CDC) never received the complainant’s specimen, and that, had a test been performed, it would

have been definitive. Although the court of appeals acknowledged that the CDC might not have

been able to extract enough DNA for a test, the court did not mention Dr. Fader’s testimony that the

inability to obtain testing from the CDC did not really matter and that testing from the CDC was not

normally sought in these types of cases.

       After reviewing the record ourselves, it appears that the court of appeals made inferences in

appellant’s favor rather than reviewing the record in a “neutral” light. The court recited facts



       18
           The court of appeals did not seem to suggest that the complainant could have acquired
gonorrhea from her mother at birth. The complainant’s mother testified that she was treated for
gonorrhea and cured during pregnancy. Kleypas testified that she would not expect to find
symptoms of gonorrhea in a child at birth if the mother had been treated. And as the court of appeals
pointed out, the testimony indicated that an untreated mother with gonorrhea could pass it on to her
child at birth, but it would show up in the eyes. When asked whether gonorrhea could be passed
from the mother at birth to the child’s female sexual organ, Dr. Greene testified that in her twenty
years as an OB doctor she had never seen it. Further when asked whether a transfer of gonorrhea at
birth could result in the manifestation of the disease in the child four years later, Dr. Fader replied,
“That would be highly unlikely.”
                                                                                   STEADMAN – 12

favorable to appellant’s position while overlooking other evidence. The court also seems to have

discounted the jury’s ability to disbelieve appellant’s explanation of how L.N. might have contracted

gonorrhea. In short, the court failed to give the deference to the jury required by Clewis.

Furthermore, the court of appeals should have discussed the various items of evidence and explained

what role they played in its factual sufficiency determination. Finally, it appears to us that the court

of appeals may have employed an incorrect understanding of the term “penetration” in its analysis.

        Concluding that the court of appeals has failed in several respects to conduct a proper factual

sufficiency review, we reverse its judgment and remand the case for further proceedings consistent

with this opinion.


Delivered: April 1, 2009
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