Henry Gallon v. State of Texas--Appeal from 144th Judicial District Court of Bexar County

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State: Texas

Court: Texas Northern District Court

Docket No: 04-00-00804-CR

Case Date: 11/14/2001

Plaintiff: MICHELLE STATLER

Defendant: THE STATE OF TEXAS--Appeal from 36th District Court of San Patricio County

Preview:Henry Gallon v. State of Texas--Appeal from 144th
Judicial District Court of Bexar County
No. 04-00-00804-CR
Henry GALLON,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CR-3153
Honorable Mark R. Luitjen, Judge Presiding
Opinion by: Phil Hardberger, Chief Justice
Sitting: Phil Hardberger, Chief Justice
Tom Rickhoff, Justice
Paul W. Green, Justice
Delivered and Filed: November 14, 2001
AFFIRMED
Henry Gallon ("Gallon") appeals his conviction for aggravated sexual assault on a child. In his sole point of error,
Gallon contends that the evidence is factually insufficient to support his conviction. We affirm the trial court's
judgment.
Statement of Facts
Gallon was convicted of sexually assaulting his twelve year old stepdaughter ("the complainant"). The complainant
testified that Gallon entered her bedroom, grabbed her, and forced her to the floor. She testified that Gallon then pulled
her shorts down and got on top of her. According to her testimony, Gallon next proceeded to initiate sexual intercourse
with the complainant.
Later that day, after Gallon had left the apartment, the complainant called 911 and told the operator that she had been
"raped." When police arrived in response to the call, the complainant gave details of what happened. Police then took
the complainant to the hospital where she was examined by a sexual assault nurse examiner for children. During the
exam, the nurse took samples from the complainant's genital area using vaginal swabs. He testified that the
complainant was "very, very shaken." He also testified that she was "extremely timid and sexually naive."
A forensic serologist with the Bexar County Criminal Investigations Laboratory examined the vaginal swabs used on
the complainant. He testified that he found traces of male sperm on the swabs. He also testified that the swabs
contained DNA that was foreign to the complainant.
Discussion
In his sole issue on appeal, Gallon challenges the factual sufficiency of the evidence. He argues that the evidence is
factually insufficient where the complainant was inconsistent as to whether the offense occurred on the bed or on the
floor, whether or not Gallon penetrated her vagina, and as to how long the incident lasted. He also contends that there
was no evidence of vaginal trauma to the complainant.
In determining the factual sufficiency of the evidence, the reviewing court views the evidence in a neutral light, "and
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sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and
unjust." Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc). "[A]n appellate court reviews the fact
finder's weighing of the evidence and is authorized to disagree with the fact finder's determination." Id. "This review,
however, must employ appropriate deference to prevent an appellate court from substituting its judgment for that of the
fact finder, and any evaluation should not substantially intrude upon the fact finder's role as the sole judge of the
weight and credibility given to witness testimony." Id. "Unless the available record clearly reveals a different result is
appropriate, an appellate court must defer to the jury's determination concerning what weight to give contradictory
testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, and those jurors were
in attendance when the testimony was delivered." Id. at 8.
Any alleged inconsistencies in the complainant's testimony were minor. She testified at trial that the sexual assault
occurred on the floor. Gallon contends that this is inconsistent with her statement to the sexual assault nurse that it
occurred on the bed. The complainant's bed, however, did not have a frame, and was merely a mattress on the floor.
She consistently testified at trial that Gallon did place his penis in her vagina. Although complainant could not recall
exactly how long Gallon was on top of her, her testimony was consistent that the assault took place for several
minutes. Finally, the State introduced evidence that sexual assaults can occur with no evidence of vaginal trauma.
The weight and credibility given to the witnesses' testimony was completely within the province of the jury. See id. at
7. Because the record does not clearly reveal that a different result is appropriate, we must defer to the jury's
determination. See id. at 8. Based upon the testimony and the scientific evidence presented at trial, we conclude that
the jury's finding was not so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. See
id. at 7. The evidence is factually sufficient to support Gallon's conviction.
Conclusion
The judgment of the trial court is affirmed.
Phil Hardberger, Chief Justice
DO NOT PUBLISH
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