Opinion issued January 27, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-00084-CR
NO. 01-04-00085-CR
PRESTON DEAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause Nos. 935743 and 935744
MEMORANDUM OPINION
Following a joint jury trial on two separate indictments, appellant, Preston Dean, was convicted of two aggravated sexual assaults of J.D., the complainant, who was younger than 14 years of age. The jury assessed punishment at 20 years’ confinement in each cause with the trial court ordering the sentences to run cumulatively. Raising the same two issues in each appellate cause, appellant contends that the evidence is legally and factually insufficient to support the convictions.
We affirm.
Background
At the time of the sexual assaults, the complainant was 11 years old and was living in her grandparents’ home along with her sister, mother, and appellant, who is the complainant’s half-brother. At trial, the complainant testified that the incident in this case occurred one evening in July 2001. The complainant recounted that she was watching a movie when appellant convinced her to come into his room. Once in the room, appellant told the complainant to lie down on the bottom bunk of a bunk bed and she complied. Appellant then lay down next to her. Appellant asked the complainant, if he touched her, would she “tell.” The complainant testified that she repeatedly said, “I don’t know,” but then, said “yes.” According to the complainant, appellant then pulled her shorts down, performed oral sex on her, and then, after she had pulled her shorts up, appellant put his finger into her vagina. The complainant testified that she started to cry because it hurt and that she pushed appellant away. Appellant then placed the complainant’s hand on his penis and made her rub it up and down.
The complainant testified that her grandmother and sister came into the room and that her grandmother told the complainant to get up and go to her room. The complainant did not tell anyone in the family about what had happened until a year later when she wrote a letter from girl scout camp to her grandmother saying that appellant had “raped” her.
At trial, the complainant’s testimony was supported by the testimony of (1) a forensic interviewer for the Children’s Assessment Center, (2) a pediatrician at the center, (3) a therapist, who had met with the complainant, and (4) the director of psychological services at the Children’s Assessment Center, who had not met the complainant. The interviewer testified that she was the first person to obtain a complete statement of events from the complainant. She related to the jury the statements that the complainant had made regarding the incident. The statements largely corroborated the complainant’s testimony at trial.
The pediatrician testified about the complainant’s medical examination performed about a year-and-one-half after the incident. The examination revealed no physical trauma, but the doctor testified that, under the circumstances, none would be expected. The notes from the examination indicated that the complainant told the examining doctor that “my brother molested me.” The complainant also told the doctor that appellant kissed and stuck his finger in “my private” and had the complainant lick his “privates.”
The therapist testified that the complainant’s account of the sexual assault contained sensory details—i.e., small details that someone who had not gone through the experience would not know. She also testified that the complainant’s behavior was consistent with that of a child who had been sexually abused.
The director at the Children’s Assessment Center testified about typical reactions children have to sexual abuse. The director stated that, in more than half of the cases involving sexual assault of a child, the victim waits a period of time before disclosing the abuse.
The grandfather and grandmother testified for the defense. According to the grandfather, he had moved the bunk beds out of appellant’s room prior to the alleged sexual assault. Specifically, he testified that he had moved the beds no later than the second week in June. The grandfather also testified that the complainant and appellant continued to spend a lot of time together after the alleged incident, that the complainant had not shown any changes in personality, and that the complainant had a “bad reputation for truth and veracity.”
The grandmother testified that the complainant sent her a letter from camp in the summer of 2002, which alleged that appellant “raped me when the bunk beds were in his room.” Like the grandfather, the grandmother also testified that the bunk beds had been moved out of appellant’s room around the first part of June, that the complainant had a “bad reputation for truth and veracity,” and that the complainant had not shown any changes in personality. The grandmother did not recall that she had found appellant and the complainant together in appellant’s room and had made the complainant leave.
Legal Sufficiency of the Evidence
In his first issue, appellant contends that legally-sufficient evidence supports neither aggravated sexual assault conviction. A legal sufficiency challenge requires us to determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Under the charge for the first offense, appellant committed aggravated sexual assault if, on or about July 15, 2001, appellant intentionally or knowingly caused the penetration of the sexual organ of the complainant by any means, and that the complainant was younger than fourteen years of age. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), (2)(B) (Vernon Supp. 2004-2005). Under the charge for the second offense, appellant committed aggravated sexual assault if, on or about July 15, 2001, he intentionally or knowingly caused the sexual organ of the complainant to contact or penetrate the mouth of another person, including that of appellant, and that the complainant was younger than 14 years of age. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(iii), (2)(B).
For both convictions, appellant contends that the evidence is legally insufficient because the complainant’s testimony lacked credibility. Appellant points out that (1) discrepancies exist as to the date and time when the incident occurred; (2) the grandparents testified that the bunk beds were moved out of appellant’s room before the date that the complainant testified the sexual assault occurred; and (3) no corroborating physical evidence was presented in support of the complainant’s accusations. Despite appellant’s contention, the jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to give their testimony under both legal and factual sufficiency analysis. Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The jury may believe all, some, or none of any witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (stating that jury “could choose to believe or not believe the witnesses, or any portion of their testimony”). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the State. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
In his briefs, appellant contends that, “at some point[,] the credibility the [sic] complainant is so undermined that a reviewing court cannot have confidence in a verdict supported solely by the complainant’s testimony.” Appellant cites no authority for this proposition and we know of none. To the contrary, in conducting a legal-sufficiency review, we do not reevaluate the weight and credibility of the evidence, but act only to ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993) (citing Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)). Moreover, it is recognized that the testimony of a victim standing alone, even when the victim is a child, is sufficient to support a conviction for sexual assault. See Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d); Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.—San Antonio 1994, pet. ref’d).
Viewed in the light most favorable to the jury’s verdict, the evidence shows that, in July of 2001, appellant performed oral sex on the complainant and then penetrated her vagina with his finger before she was 14 years old. From this evidence, a rational jury could have found all the elements of aggravated sexual assault as charged in each cause.
We hold that the evidence is legally sufficient to support the aggravated sexual assault conviction in each cause.
We overrule appellant’s first issue.
Factual Sufficiency of the Evidence
In his second issue, appellant contends that the evidence was factually insufficient to support the convictions. We begin our factual sufficiency review with the presumption that the evidence supporting the jury’s verdict is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004)). In our review, we must consider the most important evidence that the appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
Appellant again attacks the complainant’s credibility in support of his factual sufficiency challenges.
Both indictments charged that the complainant was assaulted “on or about July 15, 2001.” Appellant attacks the complainant’s credibility by pointing out that the complainant testified on cross-examination that the assaults occurred in July 2001, but also admitted that she had earlier testified that the assaults had occurred in August 2001. Regardless of the discrepancy in the complainant’s testimony regarding the month, the complainant never wavered on the fact that the assaults occurred during the summer of 2001, while the bunk beds were still in the appellant’s room. The gist of the complainant’s testimony on direct examination was that it happened during the summer of 2001, before school was back in session, and while the bunk bed was in appellant’s room. When she first revealed the incident to her family, one year later in a letter to her grandmother, she wrote only that it had happened when the bunk bed was in appellant’s room, with no further specificity to time. The “on or about” language in an indictment allows the State to prove a date other than the date alleged, as long as the date is before the presentment of the indictment and it is within the applicable statute of limitations. Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997). Here, there is no dispute that the dates alleged and proven at trial were before presentment and within the applicable statute of limitations.
Appellant contends that the evidence also shows a discrepancy with regard to the time of day the incident occurred. At trial, the complainant testified that the incident occurred in the evening. To support his credibility attack, appellant cites the notes of the complainant’s therapist, which indicate that the incident occurred at 10:30 a.m. However, the therapist testified at trial that the complainant had not told her that the incident occurred in the morning; rather, the noted time was based on an assumption that the therapist had made from other information that the complainant had told her. Therefore, any apparent discrepancy with regard to the time was clarified by the State at trial.
Appellant further attacks the complainant’s credibility by pointing out that the grandparents testified that the bunk beds had been moved out of appellant’s room before July, which is the month that the complainant testified on cross-examination that she was sexually assaulted. With regard to this discrepancy, the jury could have believed either (1) that the grandparents were mistaken as to the date that the bunk beds were moved or (2) that the complainant was mistaken as to the month the incident occurred, while still believing the complainant’s testimony that the sexual assaults occurred during the summer of 2001.
Lastly, appellant points out that “[t]here was no physical evidence corroborating the complainant’s testimony.” Presumably, appellant is referring to the lack of physical trauma to the complainant one year after the sexual assault. As mentioned, the State presented medical testimony that physical trauma would not be expected in a case such as this. And, as stated, the testimony of a child-victim standing alone is sufficient to support a conviction for sexual assault. Jensen, 66 S.W.3d at 534; Ruiz, 891 S.W.2d at 304. Here, the jury was entitled to believe the complainant’s version of the events presented at trial. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).
We conclude that the jury’s verdicts in these cases are not irrational, or clearly wrong and manifestly unjust, or contrary to evidence so strong that the standard of proof beyond a reasonable doubt could not have been met. See Escamilla, 143 S.W.3d at 817. We hold that the evidence is factually sufficient to support the aggravated sexual assault convictions in each cause.
We overrule appellant’s second issue.
Conclusion
We affirm the judgment of the trial court.
Laura Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley and Bland.
Do not publish. Tex. R. App. P. 47.2(b).