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ODIS DALE McDONALD, Appellant, v. THE STATE OF TEXAS, Appellee.

OPINION

Opinion By Justice FRANCIS.

A jury convicted appellant of sexual assault of a child, and after finding the enhancement paragraph true, assessed punishment at a mandatory life sentence. In four issues, appellant complains about the legal and factual sufficiency of the evidence to support his conviction, enhancement of his punishment, and admission of punishment evidence. We affirm. On February 13, 2005, A.H. ran away from home and went to appellant's house. Appellant was a friend of her mother's. A.H., who had turned fourteen years old just two weeks earlier, drank a beer and watched a movie with appellant in his bedroom. She testified that while the two were lying on the bed, appellant tried to kiss her, and she pulled away. Appellant tried to get on top of her, and she told him to get away and not to touch her. A.H. said appellant removed her clothing and fully penetrated her vagina with his penis. A.H. said it did not last a long time. She did not know why appellant stopped, but said he got up and apologized and said he "shouldn't have done this." She asked appellant why he had done "this," and he said he did not know but it was "wrong." A.H. said she stayed the night at appellant's. The next day, her mother picked her up, but A.H. did not tell her what happened because she "was scared." She testified she told her father what happened during a telephone conversation. Two days after the assault, A.H. told the police what happened. A.H.'s mother, Stephanie, testified that on two previous occasions, A.H. had run away and appellant called to tell her that A.H. was at his house and to come and get her. On February 13, she noticed A.H. was missing again. Stephanie called appellant, who denied A.H. was there. The next day, she went to appellant's house and his female roommate answered the door. The woman told Stephanie that A.H. was in appellant's bedroom. Stephanie found A.H. sitting on appellant's bed staring at the clock. Appellant was lying on the bed. She took A.H. home and, the next day, took her to see Detective Michael Holley of the Mesquite Police Department. A.H. did not tell her mother what happened between her and appellant. Holley, who investigated sexual assaults, took statements from both A.H. and her mother. After taking the statements, he arrested appellant. During an initial ninety-minute interview, Holley read appellant his rights and told him A.H.'s accusation. Appellant denied the allegation, and Holley ended the interview. The next day, Holley learned that appellant wanted to talk to him. Appellant, who had been given his rights again, told Holley he lied the day before and wanted to "come clean." Appellant wrote a four-page statement in which he said he and A.H. had sex by "mutual agreement." Appellant said that once he realized it was wrong, he "promptly stopped the encounter" but had "already penetrated her." Appellant said he did not ejaculate. Appellant said he explained to A.H. why he stopped and she "seemed to be very upset." In his first and second issues, appellant complains the evidence is legally and factually insufficient to prove his guilt. The standards for reviewing the legal and factual sufficiency of evidence are well established. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Watson v. State, 204 S.W.3d 404, 415-17 (Tex.Crim.App. 2006) (factual sufficiency). The difference between the two standards is that the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury's on these questions "albeit to a very limited degree." Marshall v. State, No. AP-75,048, slip op. at 7 (Tex.Crim.App. Dec. 20, 2006); see Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000) (factual sufficiency review requires reviewing court to afford "due deference" to a jury's determination). Appellant argues the evidence failed to establish that he penetrated A.H. In particular, he argues there was no physical evidence of abuse and appellant's confession to police was "obstensibly suspect" and of "questionable weight." Further, he argues the prosecutor had to "prod and remind" A.H. during her testimony and that there were contradictions and inconsistencies between A.H.'s testimony and her mother's. Although there were some minor inconsistencies in A.H.'s testimony and some confusion on her part when being questioned about the night of the offense, A.H. was not confused about the fact that A.H. fully penetrated her vagina. Moreover, appellant gave police a written statement admitting that he penetrated A.H.'s vagina. While appellant asserts that his confession was "obstensibly suspect" and of "questionable weight," there is nothing in the record to suggest the confession was anything other than knowingly and voluntarily made. The evidence showed appellant asked to speak to Holley so that he could "come clean" and then handwrote a statement admitting this offense. Before making the statement, he had been given his Miranda warnings and the warnings were written at the top of the statement form. Although given the opportunity, appellant made no changes to his statement. In short, the jury was in the best position to evaluate the witnesses' credibility. The lack of evidence of "physical abuse" does not undermine the above evidence. Reviewing the evidence under the appropriate standards, we conclude it was both legally and factually sufficient to establish penetration beyond a reasonable doubt. We reject appellant's first and second issues. In his third issue, appellant contends his punishment was improperly enhanced by his 1981 aggravated rape conviction. Specifically, he contends the plain wording of section 12.42(c)(2), which mandates an automatic life sentence in cases such as this if the defendant has been previously convicted of certain enumerated felonies, does not include the repealed aggravated rape statute. See Tex. Pen. Code Ann. § 12.42(c)(2) (Vernon Supp. 2006). As acknowledged by appellant, this issue has previously been decided against him. See Griffin v. State, 116 S.W.3d 782 (Tex.Crim.App. 2003). Although he requests we "revisit" the Griffin holding, we are bound by controlling authority of the Texas Court of Criminal Appeals. Zarychta v. State, 44 S.W.3d 155, 162 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). We resolve the third issue against appellant. In his fourth issue, appellant complains about the admission of his 1981 aggravated rape confession during the punishment phase in this case. Appellant acknowledges he did not object but asserts admission of the evidence constituted fundamental error under Blue v. State, 41 S.W.3d 129, 131 (Tex.Crim.App. 2000). In Blue, the trial judge apologized to the venire for its long wait, stated the delay was due to the defendant's indecisiveness on whether to accept a plea bargain, and expressed his preference for the defendant to plead guilty. Blue, 41 S.W.3d at 130. A plurality of the court of criminal appeals held that a trial judge's comments "which tainted [the defendant's] presumption of innocence in front of the venire were fundamental error of constitutional dimension and required no objection." Id. at 132. A plurality opinion, however, is not binding precedent. Jasper v. State, 61 S.W.3d 413, 421 (Tex.Crim.App. 2001) (acknowledging Blue as plurality opinion that court was not bound to follow). Even if Blue were binding authority, appellant's complaint does not involve his presumption of innocence, and he has not cited this Court to a single case in which Blue has been extended to evidentiary punishment issues. Accordingly, we conclude appellant has not shown the fundamental error doctrine applies in his circumstance. Because he did not object at trial, he has waived his complaint. We resolve the fourth issue against him. We affirm the trial court's judgment.

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McDONALD v. STATE, 05-06-00177-CR (Tex.App.-Dallas [5th Dist.] 1-2-2007)
(Jan 2, 2007)