Guy Nelson Montgomery v. State of Texas--Appeal from 29th District Court of Palo Pinto County

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Laws-info.com » Cases » Texas » 11th District Court of Appeals » 2002 » Guy Nelson Montgomery v. State of Texas--Appeal from 29th District Court of Palo Pinto County

State: Texas

Court: Texas Northern District Court

Docket No: 11-00-00396-CR

Case Date: 11/07/2002

Plaintiff: Markitta McCleveland

Defendant: The State of Texas--Appeal from 114th District Court of Smith County

Preview:Scott Allen Harrell v. The State of Texas--Appeal from
40th District Court of Ellis County
IN THE
TENTH COURT OF APPEALS
No. 10-04-00337-CR
Scott Allen Harrell,
Appellant
v.
The State of Texas,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 28104CR
MEMORANDUM Opinion
A jury convicted Scott Allen Harrell of two counts of aggravated sexual assault and assessed his punishment at life
imprisonment and a $10,000 fine on both counts. Harrell presents four issues in which he contends: (1) the evidence is
legally insufficient; (2) the evidence is factually insufficient; (3) his life sentences constitute cruel and unusual
punishment in violation of the Eighth Amendment to the United States Constitution; and (4) his life sentences
constitute cruel or unusual punishment in violation of article I, section 13 of the Texas Constitution. We will affirm.
Sufficiency of the Evidence
Harrell contends in his first and second issues respectively that the evidence is legally and factually insufficient.
Harrell s daughter J.H. is the complainant. She was eight years old at the time of trial. J.H. testified that Harrell put his
front inside [her] front and inside [her] back. With the assistance of photographs, J.H. identified the vagina as the front
of a female, the anus as the back, female breasts as boobies, and the penis as the front of a male. She testified that
Harrell was drunk on another occasion and did the same thing again. J.H. also testified that Harrell had her watch
something on television in which males and females were nude.
J.H. s mother Debbie provided outcry testimony. J.H. told Debbie that Harrell had made her watch dirty movies with
him and had tried to put his wienie in her vagina. When J.H. told Harrell that it hurt, he told her to be quiet or he
would hurt her or kill [Debbie]. J.H. also told Debbie about another occasion when Harrell had been drinking and
placed his penis in her anus. J.H. told Debbie that Harrell made similar threats on this occasion. Debbie testified that
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Harrell lived at the location where J.H. said she was sexually assaulted during the years J.H. was between three and six
years old.
Viewing this evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found
beyond a reasonable doubt that Harrell committed aggravated sexual assault by vaginal and anal penetration as alleged
in the two counts of the indictment. See Diaz v. State, 125 S.W.3d 739, 743-44 (Tex. App. Houston [1st Dist.] 2003,
pet. ref d); Murray v. State, 24 S.W.3d 881, 885-86 (Tex. App. Waco 2000, pet. ref d); see also In re A.B., 162 S.W.3d
598, 602 (Tex. App. El Paso 2005, no pet.). Thus, the evidence is legally sufficient, and we overrule Harrell s first
issue.
The evidence can be factually insufficient if the evidence supporting the verdict is too weak to support the finding of
guilt or if the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. See
Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004).
Regarding the weaknesses of the State s evidence, Harrell notes that the State offered no medical evidence or physical
evidence to corroborate the testimony of J.H. and her mother; J.H. could not recall whether it hurt when she was
assaulted; she did not tell anyone until her mother caught her engaging in inappropriate sexual behavior with a friend;
and her day care teachers testified that they never saw any indication that J.H. had been sexually assaulted during the
pertinent time period.
As controverting evidence, Harrell refers to testimony offered during the punishment phase. However, we do not
consider evidence offered during the punishment phase when evaluating the legal or factual sufficiency of the evidence
to establish a defendant s guilt. See Barfield v. State, 63 S.W.3d 446, 450 (Tex. Crim. App. 2001); Bryant v. State, 135
S.W.3d 130, 135 n.4 (Tex. App. Waco 2004), rev d on other grounds, 2005 WL 765840 (Tex. Crim. App. Apr. 6,
2005).
Harrell presented no controverting evidence during the guilt-innocence phase. We cannot say that the evidence is too
weak to support the finding of guilt. See Zuniga, 144 S.W.3d at 484-85; Diaz, 125 S.W.3d at 743-44; Murray, 24
S.W.3d at 887; see also A.B., 162 S.W.3d at 602. Thus, the evidence is factually sufficient, and we overrule Harrell s
second issue.
Cruel and Unusual Punishment
Harrell contends in his third issue that his two life sentences and the $10,000 fines violate the Eighth Amendment
prohibition on cruel and unusual punishment. He contends in his fourth issue that his punishment violates the
prohibition against cruel or unusual punishment found in article I, section 13 of the Texas Constitution.
However, because Harrell failed to raise these contentions at trial, he has failed to preserve them for appellate review.
See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (art. I, 13); Schneider v. State, 645 S.W.2d 463,
466 (Tex. Crim. App. 1983) (8th Amd.); Steadman v. State, 160 S.W.3d 582, 586 (Tex. App. Waco 2005, pet. ref'd)
(8th Amd.); Acosta v. State, 160 S.W.3d 204, 211 (Tex. App. Fort Worth 2005, no pet.) (art. I, 13). Thus, we overrule
Harrell s third and fourth issues.
We affirm the judgment.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
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Affirmed
Opinion delivered and filed October 26, 2005
Do not publish
[CRPM]
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