NO. 07-05-0113-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D NOVEMBER 30, 2006

______________________________ RONALD R. GREEN, Appellant

v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 140 TH DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2004-405,478; HON. JIM BOB DARNELL , PRESIDING

_______________________________

Opinion

_______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Ronald R. Green appeals his convicti on for aggravated sexual assault. He seeks to overturn it by contending that 1) the evidence is legallyand fact ually in sufficient to sustain it, 2) the trial cour t erred in r

efusing to gr

ant his object ion to th e prosecutor’s wearing of a religious cro ss on her person, and 3) the tria l court err ed in granti ng the State’s motion to invoke therule agai nst his “par ents.” We affirm the judgment.2 Issues 1 and 2 -

Sufficienc

y of the Ev

idence In his first tw

o issues, appel lantchallengesthe sufficiency of th e evidence to sustain his conviction. In particular, he arguest h a ti tfa i l e d t o s h o w p e n e t r a t i o n o f t h e v a g i n a . We overrule the issues. The standards by which we review the sufficiency of the evidence are well established. We refer the parties to Jackson v. Vi rginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979), Watson v. Stat e, No. PD-469- 05, 2006 Tex. Crim. App. L EXIS 2040 (Tex. Crim. App. O ctober 18, 2006) , Zuliani v. State, 9 7 S.W.3d 589 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556 (T ex. Cri m. App. 2000) for an ex planation of those standards. Next, appellant

was charged with intentionally and knowingly penetrating the female sexual organ of a fiv e-year- old child w ith his fing er. Penetration may be established through circumstantial ev idence, Villalon v. State, 791 S.W.2d 130, 133-34 (Tex . Cri m. App. 1990), and the sligh test penetratio n is sufficient touphold t he convict i on. Luna v. State, 515 S.W.2d 271, 273 (Tex. Cr im. App. 1974), quoting Nils son v. State , 477 S.W.2d 592 (Tex. Cr im. App. 1972). Penetrat ion includes pushing asi de and reaching beneath a natural fold of skin into a n area of the body not usually exposed toview even when one is naked. Vernon v. State, 841 S.W .2d 4 07, 4 09 (T ex. Crim. App. 199 2). Additiona lly, the sexual assault victim need not testify as to penetrati on. Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.–H ouston [14 th Dist.] 2000, pet. ref’d). W hile is it tr ue that at

trial, the child testi fied that appellant’ s finger was outside her “cookie,” as she referred to her sexual organ, she also te stified that it hurt “like a rock hit3

[her]” when appell ant put his fing er on her and that it burned a nd hurt afterward. Penetration of the vagi na could cause burning, accor ding to the sexual assault nurse w ho testified. Moreover , the vict im told the sex ual assault nur se that appellant

p ut his “little finger inside [her] cookie.” So too did the nurse discover two rece nt abrasions i n the child’s vagina that were consistent w ith digital penetration. This is some evidence, if believ ed, upon which a r

ational tri er of fact could c oncl ude, beyond rea sonable doubt that penetration occurred. See Vernon v. Stat e , supra (holding that the evidence was sufficien t to establish penet ration wh en the vict im testified that Vernon touch ed the “[o]utsi de” of her vag ina but none theless felt him pressing on it and f elt pain and discomf ort when he did press). Adm itte dly, there wasevidence of r ecord that the victim’ s mother had examined the child’s genitals after the child made h er outcry, and the nurse testified it was possible the mother could have cause d the abrasions. Ther e was als o testimony t hat the child ha d scratched or

touche d hersel f which co uld likewise have caus ed them , althou gh the nurse testified it w

as un likely . An d, asfor t he fai lur e of t he emergency room phy sician to find sexual abuse, the ev idence showed that he performed onl y a vi sual examinat ion. Yet, the
nurse examiner s tated that she uti lized a mag nifying dev ice to conduct her examinati on of the child. That thehymen was also intact, accor ding to the phy

sician, did not negate the presence of abrasions. Nor doesit necessarily suggest that appellant did not touch, push aside, or reach beneat h a natural fold of ski n into an area of the body not usual ly exp osed to view even wh en one is naked. Indeed, the thrust of his efforts is directed at disparag ing the evidence of abr

asion wi thin t he vagina. Yet, thereneed not be such abr asions for there to be penetration. Again, al l that is necessary i s slight penetration. Luna v. State,4

supra . Moreover , appellant ci tes us to no ev idence sugg esting that his hand was not in the vicini ty of his vic

tim’s vag ina or

that he did not touch the or gan in such a way to make the youth feel pain and burning once he stopped. In short, the foregoing evidence simply raised issues of f act for the jury to resolve. Furthermore , that s upporting theverdict was neith er weak nor overw helmed by contradic tory ev idence. So, the jury was free to believe the witnesses and evidence it cared to believ e, and we cann otinterfere with it s prerogat ive gi ven the state of the record. Thus, the verd ict had the suppor t of both legall y and factuall y sufficient ev idence. Issue 3 - Display of Religious Symbol In his third issue, appellant contend s the trial court erre d in overruling hisobjection to the prosecutor

wearing a small cro ss around her neck during trial. That act, according to appellant, pur portedly en couraged the jury to find him guilty as “a part of the acceptance of the relig ious philosoph ies adopted and di splayed by the government.” We overrule the issue. The cross at i ssue was d escribed asb eing one inc h by one-hal f inch in siz e. Furthermore, the trial judge had not o bserved i t prior to a ppellant rais ing the is sue. Nor could the trial judge see it from a distance of eig ht feet onc e he was made aw are of it. Thus, it was

far from obviousor obtrusiv e. Years ago, it w

as held that the U nited States Co nstitution does not require government

to be hostile tow

ards relig ion. See Zorach v. Clauson , 343 U.S. 306, 313-14, 72 S.Ct. 679, 684, 96 L.Ed. 954, 962 (1952). But, thatis the effect of appellan t’s argument here.5

Judges wear bl ack ro bes a nd si t abo ve those appearing before the court. Litigants and their counsel wear par ticular j ewelry

an d cloth ing to sy mbolize thei r view points or create certain impr

essions upon thos e observi ng them. Pict ures of past judgesand other elected officials, statues of notable personalities, engraved gavels, and the like al so dot the walls and spaces of our many courtrooms. Simply put, our halls of ju stice are aw ash with symbo lism. To cull and discard from those many symbol s an unobtrusiv e item indic ative of a person’s belief in a life superio r to that found within the confines of a courtroo m would be nothing shor

t of a hostile act

towardsreligi on. While the freedom to believe and evince one’s belie fs m ay be wa stin g away in certa in en viron men ts, we cann ot sa y t hat the act complained of here warr ants further eros ion of personal r eligious libe rty. Se e Draper v. Logan County Publi

c Library, 403 F. Supp. 2d 608, 621 (W . D. Ky. 2003) ( holding that a government

employee’s wearing of an unobtru sive religio us symbol did not unduly entangle the state wi th religi on); Nichol v. Arin Interm ediate Unit 28, 268 F. Supp. 2d 536, 554 (W .D. Pa. 2003) (holdi ng that a teacher’ s weari ng of a small c ross whi le teaching would not be perceived by h er stud ents as endorsing a Christian viewpoint given the other symbolic jewelry worn at school). Issue 4 - Invo cation of the Rule Fina lly, appellant cla ims error on the part of the tri al court in removing his “parents” from the courtroom up on the State’s i nvocation of the Rule. That purportedly denied him his rig ht to moral suppor t. We overrule the iss ue. The “parents” in question were appell ant’s mother, Ruth Cor zine, and anot her
woman named Caroline Edwards. Furthermore, his objection enc ompassed solely the6

presence of his mother. Thus, appellant waived any complaint h e had rega rding the exclusio n of Edwards. As for Ms. Co rzine, th e prosecutor stated that

she could be a potential rebu ttal witne ss give n that s he was mentio ned “in CPS r eports” detai ling extraneous ac

ts of sexual abuse between appellant and his daughter. F urthermore, the State notified appellant of its potential use of that evidence at trial. So too had appellant’s counsel alluded to (during his voir dire) Ms. Corzin e as being a p otential witness, th ough he later informed t he court that she wo uld not testify. Of note, h owever, is that while complaining that his mother would not testify, appellant did not represent that

she lacked knowledge of pert inentfacts related tohis prosecut ion or the ex traneous offenses
enc ompas sed by the repor ts. Giv en these circ umstances, we cannot say that the trial court abused its discretion in excluding Ms. Corzine from the trial as a potential witness. See Petersv. State, 997 S.W.2d 377, 385 (Tex. App.–Beaumont 1999 , no pet.) (holding thatthe trial court did not abus e its discr etion in excluding the person from the cour troom since she was a potential w itness). An d, the opinion i n Addy v. State, 849 S.W.2d 425 (Tex. App.–Houston [1 st Dist.] 1993, no pet.), upon which appellant relies, does not cau se us to conclude o therwis e. Addy dealt with whether the exclusio n of six b lack friends of Addy denied him his
r ight to a public trial. Id. at 426. Appellant did not m ention that ground as basis f or his objection atbar, howev er. And, unli ke the circ umstances here, the prosecutor in Addy did notknow w ho the s ix individuals she sought toexclude w ere. So too did she admit that she did not kno w i f “ they [were] pertinent witnesses.” Id. at 427-28. In short, the record in Addy revealed t hatthe individuals excluded w ere simply

spectators. We have none of those indici a here.7

Accordingl y, we affirm the judgment of the trial cour t.

Brian Quinn Chief Justice Publish.