Harrell v. State, No. 10-04-00337-CR (TX 10/26/2005)

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Unpublished Opinion

SCOTT ALLEN HARRELL, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 10-04-00337-CR.

Court of Appeals of Texas, Tenth District, Waco.

Opinion delivered and filed October 26, 2005.

Do Not Publish.

Appeal fromthe 40th District Court, Ellis County, Texas, Trial Court No. 28104CR.

Affirmed.

Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.

MEMORANDUM OPINION

FELIPE REYNA, Justice.

A jury convicted Scott Allen Harrell of two counts of aggravated sexual assault and assessed his punishment at life imprisonment and a $10,000 fine on both counts. Harrell presents four issues in which he contends: (1) the evidence is legally insufficient; (2) the evidence is factually insufficient; (3) his life sentences constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution; and (4) his life sentences constitute cruel or unusual punishment in violation of article I, section 13 of the Texas Constitution. We will affirm.

Sufficiency of the Evidence

Harrell contends in his first and second issues respectively that the evidence is legally and factually insufficient.

Harrell's daughter J.H. is the complainant. She was eight years' old at the time of trial. J.H. testified that Harrell "put his front inside [her] front" and "inside [her] back." With the assistance of photographs, J.H. identified the vagina as "the front" of a female, the anus as "the back," female breasts as "boobies," and the penis as "the front" of a male. She testified that Harrell was "drunk" on another occasion and did the same thing again. J.H. also testified that Harrell had her watch something on television in which males and females were nude.

J.H.'s mother Debbie provided outcry testimony. J.H. told Debbie that Harrell had made her watch "dirty movies" with him and had tried "to put his wienie in her" vagina. When J.H. told Harrell that it hurt, "he told her to be quiet or he would hurt her or kill [Debbie]." J.H. also told Debbie about another occasion when Harrell had been drinking and placed his penis in her anus. J.H. told Debbie that Harrell made similar threats on this occasion. Debbie testified that Harrell lived at the location where J.H. said she was sexually assaulted during the years J.H. was between three and six years' old.

Viewing this evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found beyond a reasonable doubt that Harrell committed aggravated sexual assault by vaginal and anal penetration as alleged in the two counts of the indictment. See Diaz v. State, 125 S.W.3d 739, 743-44 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd); Murray v. State, 24 S.W.3d 881, 885-86 (Tex. App.-Waco 2000, pet. ref'd); see also In re A.B., 162 S.W.3d 598, 602 (Tex. App.-El Paso 2005, no pet.). Thus, the evidence is legally sufficient, and we overrule Harrell's first issue.

The evidence can be factually insufficient if the evidence supporting the verdict is "too weak to support the finding of guilt" or if the contrary evidence is so strong "that the beyond-a-reasonable-doubt standard could not have been met." See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004).

Regarding the weaknesses of the State's evidence, Harrell notes that the State offered no medical evidence or physical evidence to corroborate the testimony of J.H. and her mother; J.H. could not recall whether it hurt when she was assaulted; she did not tell anyone until her mother caught her engaging in inappropriate sexual behavior with a friend; and her day care teachers testified that they never saw any indication that J.H. had been sexually assaulted during the pertinent time period.

As controverting evidence, Harrell refers to testimony offered during the punishment phase. However, we do not consider evidence offered during the punishment phase when evaluating the legal or factual sufficiency of the evidence to establish a defendant's guilt. See Barfield v. State, 63 S.W.3d 446, 450 (Tex. Crim. App. 2001); Bryant v. State, 135 S.W.3d 130, 135 n.4 (Tex. App.-Waco 2004), rev'd on other grounds, 2005 WL 765840 (Tex. Crim. App. Apr. 6, 2005).

Harrell presented no controverting evidence during the guilt-innocence phase. We cannot say that the...