NO. 07-04-0390-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A JANUARY

13, 2006

______________________________ JEFFREY GRIMES, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 3RD DI STRICT COURT OF AN DERSON COU NTY; NO. 26796; HON ORABLE PAM FL ETCHER, JUD GE

_______________________________ Before REAVIS and CAMPBELL and HANCOCK, JJ. MEMORA NDUM OPIN ION Followi ng a pl ea of not g uil ty, appe lla nt J effrey Grimes was convic ted by a jur

y of aggravated sexual as sault of a child, enhanced, and pun ishment was assessed at 50 years confinement. Pre sen ting two issues, appel lant maintains the evidence is legal ly and factual ly i nsuffici ent to s upport his convi ction . We affirm.2

When the victi m, D.A., was nine year s old, she confide d in her older sister that appellant, her st epfather, h ad sexuall y abused her. The sister told their mother , who immediately took D.A. to afamily physician. Fo llowing an examinati on, the doctor concluded there wasevidence of di gital penetr ation and s ugges ted t hat C hild Prot ecti ve Services be contacted. After D.A.’s m other conta cted CPS, she an d her three chi ldren went to stay w ith friends and later

moved into a shelter. D.A. was given a sexual assault exam which revealed with medical certainty that she had suffered penet rat i on over a per iod of time. An initial interview was conducted by the director at the Crisi s Center, and D .A. had numerous sessions w ith one of the center’s counselor s. She also was tre ated by a psycholog ist. Several months after the a llegations were made a nd an invest igation had taken place, D.A. recanted explaini ng she had li ed to avoid do ing choresand had hoped the accusationswould only res ult in a tempora ry separ ation from appellant . She claimed she was lazy and tired of her m other a nd step fath er fight ing. She was unaware that a ny legal action woul d be taken. Althou gh appell ant cou ches hi s compl aintsin ter ms of sufficien cy of the evidence, by his arguments and authorities, he challenges the admissibility of D.A.’s outcry s tatement when the State knew she had recanted t he accusations. He also chal lenges admiss ion of por tion s of a videotaped interview of D.A.’s prior inconsistent statements. He contend s3

D.A.’s prior inconsistent statements are not evidence of g uilt and concludes that following her impeachment, the ev idence wasinsufficient t o s u p p o rt t h e c o n v i c t i o n . We disagree. Article 38.072 of the Texas C ode of Criminal Procedure prov ide s that a child’s outcry statement is admiss ible as an exception to the hearsay rule if the requir

ements of the statute hav e been met. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005). In other words, hearsay admitted pursu ant to an excep tion is con side red s ubst anti ve evidence with some probative v alue. See Rodriguez

v. State 819 S.W.2d 871, 873 (Tex.Cr.A pp. 1991). See generally Poindex

ter v. State, 153 S.W.3d 402, 409 n.23 (Tex.Cr.A pp. 2005 ) (quo ting a law review artic le that the “bes t argument in favor of the prob ative value of hearsay lies in the many exceptions to it s exclus ion.”) [Ci tations omitted]. Awi t ness’s pri or inconsis tent statement isadmissible onl y for purposes of impeachment

unless it fall s withi n a he arsa y excep tion . Tex. R. Evid. 613(a). See Miranda v. State, 813 S.W.2d 724, 735 (Tex.App.–San Antoni o 1991, pet ref’d). App ellant sugg ests thatbecause the State was aware that D.A. recanted , it impeached her as a subterfuge for getting her prior inconsistent state m ents before the jur y. See Ramirez v . State, 987 S.W .2d 938, 944 (Tex.App. –Austin 1999, no pet .). After a hearing outside the jury’s presence, th e trial court ruled that D.A.’s mother would be permitted to testify as theoutcrywitnessregarding her and her daug hter’s ini tial conversati on about the abuse. Sh e testified that during her i nitial conversation w ith D.A., she asked specific questions about the allegations. D.A. respond ed that appellant pulled4

her panties to the side and tou ched and rubbed her “down there.” Her moth er immediately suspected molestation and ha d D.A. exami ned by a family physici an. He concluded there was evidence of penet ration and recommended CPS be contacted. She reported th e incident and also arranged fo r a sexual assault exam at the hospital. When D.A. testified , she admitted ly ing about bein g sexual ly abused by appellant. She rationalized her co nduct as an excus e to avoid c hores and did not believe her accusationswould re sult in appell ant being arr ested. According to her testi mony, after her mot her s howed her a n ewspaper ar ticle that appel lant had been indi cted, she cri ed and recanted. She did not li ke livi ng in a shel ter and missed h er home and appe llant. Her siblings were also unhappy with their liv ing arrang ements. When questioned about the abuse, D.A. denied statements she had made to the di rector at t he Crisis Center duri ng the initial forensic interview and equivocated on many answers. The Stat e asked for a recess and moved to show a v ideotape of the forensi c intervi ew to illustr ate D.A.’s pr ior incons istent st atements. After enter taining numer

ous objection s by def ense coun sel, the t rial c ourt ruled that any st atem ents deni ed by D .A

. could be impeached by i nconsistent statements made on the vi deotape. Otherw ise, the trial court sustai ned defense counsel’s obj e ctions and g ave the jur y a limit ing instr uction thatthe videotapewas for impea chment only and could not be us ed as proof of the elements of the offense.5

D.A.’s credibili ty was

impeached at tri al. Appellant maintai ns that D.A.’ s prior inconsistent

and unswor n statements were the o nly ev idence supporti ng the accusations and without them, his conv iction cannot stand. We disagree. Appellant

was indicted for intentionally or kn o wingl y causing digital penetration of D.A.’s sexual or

gan. See Tex. Pen. Code Ann. § 22.021(a)( 1)(B)(i ) (Vernon 2003) . When sufficiency of the evidence is challenged, we must fir st determine w hether legal ly sufficient evidence exists that would s how beyond a reasonable doubt that the defendant committed each element of

the o ff ense . Clewi s v. State, 922 S.W .2d 126, 133 (Tex.Cr.App. 19 96). In so doing, w

e examine the verdict, after viewing the evidence in the light most favorable to the prosecution , to determine w hether any r ational tri er of fact could have found th e essential elements of the cri me beyond a reasonable doubt. Jackson v . Virgin ia, 443 U.S. 307 , 319, 99 S.Ct. 2781, 278 9, 61 L.Ed.2d 560, 573 (1979); Burden v. Sta te, 55 S .W .3 d 608, 612-13 (Tex.Cr. App. 2001). This standard is t he same in both direct and ci rcumst anti al evidence cases. Burden , 55 S.W.3d at 612-13

. Subs tant ive evid ence with so me p roba tive value , even if err

oneously admi tted, is, by itself, sufficient to support the j ury’s ver dict

. Rodriquez , 819 S.W.2d at 873-74. After conduc ting a legal sufficiency review under Jackson , we must deter mine, after considering all the ev idence in a neutr al light, whether th e jury was rationally justified in finding guilt bey

ond a reasonable do ubt. Zuniga v . State, 144 S.W.3d 477, 484 (Tex.Cr.A pp. 2004). It is the exclus ive prov ince of the jury to determine thecredibili ty of6

the witnesses and the weigh t to be given their testimony, and unless the record clearly demonstrates a differen t result isappropriate, we must defer tothe jury ’s determinati on. Johnson , 23 S.W.3d at 8. D.A.’s mother testified that at first she beli eved her daug hter had been molested by appellant. According to the outcry statement, appell ant pulled D.A. ’s panties to the side and t ouched and rubbed her pr ivate parts. Evidence of digital p enetration and othe r details, however, was not al lowed aspart of the original outcry statement. T hus, we must look to other e vidence to s upport appellant’ s convic tion for agg ravated sex ual assault. The family physician testi fied that D.A. tol d him appe lla nt had inserted his fingers into her vag ina. He deter mined that D.A. ’s hymen was open about a centimete r, which wa s unusual for someon e her age. The nurse who performe d the sexual assault exa m also testified that

the condition o f D.A.’s hy men was consi stent wit h her allegations. There was medical certainty of dig ital penetrati on over a per iod of time. No obj ections were made to the testimony

of either wi tness; howev er, an exce ption to the hearsay rule exi sts for medical diag nosis or tr eatment. See Tex. R. Evid. 803(4). D.A.’s mother testified tha t, although she loved her daughter, she knew she told lies. She also testified that at an early ag e she discovered D.A. masturbating and believe d that caused the damage to her hymen. The nurs e, however , testified the damag e could not have been caused by masturbatin g, bicycling, or a fall.7

Acounselor at the Crisi s Center testified that

according to his sex ual inventor y and checklist for assessment, hedid not suspect D.A. concocted the ac cusations. The di rector atthe Crisi s Center test ified that after D. A. recanted, sheintervi ewed her ag ain and found her demeanor to be ten se and her responses to be “mo notone and robotic.” Apsychologist, who was not allowed to offer an opinion on this part icula r case, te sti fi ed on mo tives for r ecan ting. He expl aine d tha t a ch ild ha s a ne ed to survive regardless of the home envir onment. The credibi lity of an ac cus ation inc reases wh en spontaneous corrections a re made du ring an i nterview rather than par roting or when sex ual details are given that are not age appropriate. Additiona lly, a jury can c hoo se to disb elie ve recantation. See Chambers v. State, 80 5 S.W.2d 459, 461 (Tex.Cr.App. 1991) (en banc). Regardless of D.A.’s impeac hment, there is s ufficient evidence to support appellant’s conviction. Issues one and t wo are overruled. Accordingl y, the tri al court’s judgment is a ffirmed. Don H. Reavis Justice Do not publish

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