No. 05-04-00824-CR
Opinion Filed May 6, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court # 2 Dallas County, Texas, Trial Court Cause No. F03-72567-I. Affirm.
Before Justices WRIGHT, MOSELEY and LANG.
Opinion By Justice LANG.
Tyrone Cook appeals his conviction for sexual assault. After finding true the enhancement paragraph for a prior felony conviction, the trial court found Crook guilty and sentenced him to thirty years confinement. In two issues, Crook contends that (1) the evidence was factually insufficient to support the conviction, and (2) the trial court erred by failing to allow him to impeach the complainant with the nature of a prior offense. For the reasons set forth below, we decide both of Crook's issues against him and affirm the trial court's judgment.
Factual Background
On or about May 4, 2003, Crook forced his way into the home of the complainant, with whom he previously had a brief sexual relationship, and demanded to know why she was no longer calling him. Complainant testified that Crook grabbed her by the hair, upset and "hollering," telling her that it was "not over" and that he was "going to make mad passionate love" to her. She continued to fight and kick, but Crook repeatedly tried to penetrate her. After Crook tried to force her submission, and after he had forcibly penetrated her, complainant decided to appear as though she was cooperating. Then, while Crook was retrieving a robe from the bedroom, complainant fled her home and ran to her neighbor's house. Complainant's neighbor testified that complainant had come to her house crying, in a panic, and saying that she had been raped. The neighbor called the police and complainant was taken to the hospital for a rape examination. The physician who performed the examination testified that complainant had been vaginally and anally penetrated. The doctor stated that complainant did not appear intoxicated, and that she was cooperative, although quite tearful. Other forensic testimony showed genetic markers that matched Crook. In his defense, Crook testified that he had known complainant for a long time and had a serious relationship with her at the time of the alleged sexual assault. He testified that he maintained contact with her after she was jailed on a probation violation and that the sexual encounter in question was consensual. Factual Sufficiency
In his first issue, Crook contends that the evidence was factually insufficient to support the conviction. Specifically, he asserts that there is insufficient evidence to show that complainant did not consent to the sexual episode. We disagree. In conducting a factual sufficiency review, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence can be factually insufficient when: (1) considered by itself, the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) contrary evidence exists that is "strong enough that the beyond-a-reasonable-doubt standard could not have been met." Id. at 484-85. In examining a factual sufficiency challenge, we defer to the fact finder's determination of the credibility of the evidence. Johnson, 23 S.W.3d at 11. A person commits sexual assault if he intentionally or knowingly causes the penetration of the anus or sexual organ of another person by any means without that person's consent. Tex. Penal Code Ann. § 22.001 (Vernon 2003). The lack of consent can be proven by the threat or use of physical force or violence. Tex. Penal Code Ann. § 22.011(b)(1)-(2) (Vernon 2003). The victim's testimony, standing alone, is sufficient to support a conviction for sexual assault. Villalon v. State, 791 S.W.2d 130, 133 (Tex.Crim.App. 1990); Jensen v. State, 66 S.W.3d 528, 534 (Tex.App.-Houston [14th Dist.] 2002, pet ref'd). In the present case, Crook does not deny having sexual intercourse with complainant. Rather, he contends that the evidence was insufficient to prove lack of consent. Complainant testified that (1) she tried to fight Crook off by kicking and screaming, (2) Crook pulled her hair and repeatedly tried to penetrate her and did penetrate her, and (3) after switching to the tactic of appearing cooperative, she was able to escape to her neighbor's house and call the police. Viewing all the evidence in a neutral light, and giving appropriate deference to the court's determination of witnesses' credibility, we conclude that the trial court was rationally justified in finding Crook guilty beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484; see also Villalon, 791 S.W.2d at 133. Accordingly, we decide Crook's first point against him. Impeachment with the Nature of a Prior Offense
In his second issue, Crook contends that the trial court erred by not allowing the impeachment of complainant with a prior deferred adjudication. Specifically, he contends that the court should not have sustained the State's objection to defense counsel's question to complainant about the nature of a prior offense. We disagree. When reviewing the extent of cross-examination of a witness, we apply an abuse of discretion standard. Cantu v. State, 939 S.W.2d 627, 635 (Tex.Crim.App. 1997) cert. denied, 522 U.S. 994 (1997). A trial court retains wide latitude to impose reasonable limitations on cross-examination. See Moody v. State, 827 S.W.2d 875, 891 (Tex.Crim.App.), cert. denied, 506 U.S. 839 (1992). Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. Evidence which is not relevant is inadmissible. Tex. R. Evid. 402. A party cannot impeach a witness on a collateral matter unless it is to show bias or to correct any affirmative misrepresentations made by the witness during direct examination. Tex. R. Evid. 613(b); Ramirez v. State, 802 S.W.2d 674, 675-76 (Tex.Crim.App. 1990). In the present case, despite Crook's contention that the nature of complainant's prior offense would show bias, the specific offense for which complainant served her deferred adjudication was not at issue in the present trial. The State had already established on direct examination that complainant was serving a deferred adjudication probation during one point in her relationship with Crook. Any further inquiry would not have made the existence of any fact of consequence to the determination of Crook's alleged offense more or less probable than it was without the evidence. Furthermore, such testimony was not relevant to any bias, motive or interest to help the State, and was therefore an impermissible method of impeachment. Accordingly, the trial court was within its discretion to limit the question posed by Crook's counsel. See Moody, 827 S.W.2d at 891 (noting that a trial court has wide latitude to limit cross-examination based upon concerns that the evidence is only marginally relevant). Conclusion
Having decided both of Crook's issues against him, we affirm the trial court's judgment.