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PAUL EUGENE TIGER, Appellant v. THE STATE OF TEXAS, Appellee.

OPINION

Opinion By Justice JAMES.

A jury convicted Paul Eugene Tiger of two counts of aggravated sexual assault of a child younger than fourteen years. The trial court sentenced him to life imprisonment in each case. In a single point of error, appellant contends the evidence is factually insufficient to support the convictions. We affirm the trial court's judgments. Background M.T., the complainant, was appellant's eight-year-old stepdaughter. At the time of trial, M.T.'s mother and appellant were divorced. M.T. testified appellant did "sexual things" to her during the five years she lived with him. M.T. testified appellant would come into her bedroom when she was asleep, get on top of her, and "just start doing it and then I would wake up." M.T. testified sometimes appellant would put his "private part" on her tongue, sometimes appellant's private part was "squishy or hard," and sometimes a yellow substance would come out of appellant's private part and drip on her stomach. M.T. testified the last time appellant sexually abused her occurred in October 2001. Appellant beat M.T. with a shoe because she got a bad conduct grade at school. Appellant then made a line on the wall and forced M.T. to stand against the line on her tiptoes. If M.T. got above or below the line, appellant would hit her with a stick. M.T.'s mother witnessed the beating, but did nothing to stop appellant. When M.T.'s mother went to take a shower, appellant forced M.T. onto a couch in the mother's bedroom, removed M.T.'s clothing, and inserted his penis into her vagina. Appellant stated M.T.'s mother was making him do these things to M.T. because the mother hated M.T. Appellant also threatened to take M.T. to Oklahoma and kill her if she told anyone about the things he was doing to her. M.T. testified she did not tell anyone for five years because she knew appellant was from Oklahoma and had family there and she was afraid appellant would kill her. The day after the beating and sexual abuse, M.T. went to school. M.T. told a teacher she could not sit down because her stepfather had beat her. The school notified police, and M.T. was taken to a hospital. A police officer photographed the bruises on M.T.'s buttocks and wrists. The photographs were offered into evidence without objection and were shown to the jury. M.T. spent that night in foster care, then went to live with her biological father's parents. M.T. testified she did not tell Child Protective Service (CPS) workers or the doctor who examined her after the beating about the sexual abuse because she was afraid appellant would kill her. After she lived with her grandmother for about one week, M.T. told the grandmother about the sexual abuse. M.T. then talked with a CPS worker, a counselor, and another doctor about the sexual abuse. M.T.'s grandmother testified that when M.T. first told her about the sexual abuse by appellant, M.T. stated the last incident happened when "everybody went to a funeral." M.T. told her appellant used to "do it to me" and "stick it in me." M.T. started crying and told the grandmother that appellant had been doing sexual things to her since M.T. was "two or three years old." The grandmother testified appellant began living with M.T.'s mother when M.T. was four years old. The grandmother further testified M.T. later remembered that appellant also sexually abused her after he beat her with the shoe, and M.T. did not tell her mother because M.T. was afraid appellant would kill her. The grandmother took M.T. to the Dallas Children's Advocacy Center. Appellant's father-in-law testified that after M.T. made the outcry and police became involved, appellant left a message on his answering machine. In the message, appellant admitted he sexually abused M.T. The answering machine was admitted into evidence and the message was played to the jury. Cheryl Mallory, a CPS worker, testified CPS had been involved with appellant and M.T.'s mother on two other occasions. Mallory testified that after the allegations of sexual abuse by appellant were made by M.T., appellant left a voicemail message on Mallory's office telephone that stated, "This is Paul Tiger. I did it. I know it was wrong. Cindy knew nothing about it and she deserves to have that baby back." Mallory explained that CPS also removed a two-year-old child from appellant's home. Lori Langston, a forensic interviewer at the Dallas Children's Advocacy Center, testified she interviewed M.T. on November 8, 2001. A videotape of the interview was admitted into evidence and shown to the jury. Dr. Donna Persaud examined M.T. on November 12, 2001. M.T. stated to Dr. Persaud, "I used to see blood on my underwear and when I wiped myself after he did sexual stuff to me." Dr. Persaud testified M.T.'s genital examination was abnormal in that a portion of M.T.'s hymen was completely rubbed away, which was consistent with penetration of the vaginal vault. Dr. Persaud further testified the findings from M.T.'s examination were strongly suggestive of past repeated penetrating trauma over time, and that the trauma would have occurred at least several weeks before the examination. J.T., appellant's twelve-year-old daughter from a previous marriage, testified she lived with her mother but spent the weekends with appellant. J.T. testified she never saw appellant do anything towards M.T., and on the occasions J.T. slept in the same room with M.T., M.T. behaved normally and so did appellant. J.T. further testified that before appellant remarried, she also spent the weekends with him. J.T. slept in the same bed with appellant until she was about six years old and appellant never molested her. Christopher Cheney testified he worked with appellant and visited appellant's home often. Cheney testified he spent the night at appellant's house at least twice a week during two summers, and he never saw appellant do anything toward M.T. Appellant did not testify during the trial. Applicable Law A person commits aggravated sexual assault of a child younger than fourteen years if he intentionally and knowingly causes the penetration of the anus or female sexual organ of a child by any means, or causes the penetration of the mouth of a child by the sexual organ of the actor. See Tex. Pen. Code Ann. § 22.021 (Vernon 2003). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The jury is the exclusive judge of the facts provided and of the weight to be given to the testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); see also Johnson, 23 S.W.3d at 9. While the reviewing court has some authority to disregard evidence that supports the verdict, it may not substitute its own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Discussion Appellant argues the evidence is factually insufficient because M.T.'s testimony about when the abuse started and when the last incident occurred was inconsistent. Appellant argues that although M.T. had been previously questioned by caseworkers about any sexual abuse, she never made an outcry until she went to live with her grandmother. The State responds the evidence is factually sufficient to show appellant orally and vaginally penetrated M.T. M.T.'s genital examination shows she was vaginally penetrated over a period of time. M.T. testified appellant had sexually abused her for five years, with the last episode occurring when she was eight years old after appellant beat her with a shoe. M.T.'s grandmother testified M.T. told her the abuse started when M.T. was "two or three," and that appellant began living with M.T.'s mother when M.T. was four years old. Although M.T. initially told the grandmother the last incident occurred when everyone else was attending a funeral, M.T. also told her grandmother the last incident occurred after appellant beat her with a shoe. M.T. explained she was too afraid of appellant to tell her mother or anyone else about the sexual abuse because appellant threatened to take her to Oklahoma and kill her. Appellant's daughter and his friend testified they had stayed at appellant's house on numerous occasions and never saw appellant do anything to M.T. There were conflicts in the evidence regarding how long the sexual abuse of M.T. by appellant had occurred or the date of the last incident. However, it was the jury's role as fact finder to resolve any discrepancies or inconsistencies in the evidence, determine the credibility and weight to be given the evidence, and draw reasonable inferences from the evidence. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Having reviewed all the evidence under the appropriate standard, we conclude the evidence is factually sufficient to support the conviction. See Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant's sole point of error. We affirm the trial court's judgment in each case.

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TIGER v. STATE, 05-02-01857-CR (Tex.App.-Dallas 11-3-2003)
(Nov 3, 2003)