Opinion issued July 6, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00493-CR
ZIMBALISH ANTHONY SEGURA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Cause No. 05CR1436
MEMORANDUM OPINION
A jury convicted appellant, Zimbalish Anthony Segura, of aggravated sexual assault of a child and, having pleaded true to the enhancement paragraph alleging a prior conviction for "Possession of a Firearm or Carrying Concealed Weapon by a Person Convicted of Certain Felonies" in Louisiana, he was sentenced to 25 years' confinement. See Tex. Pen. Code Ann. § 22.021 (Vernon 2003). On appeal, appellant contends that (1) the State's improper voir dire deprived him of his due process rights and (2) the evidence is factually insufficient to sustain his conviction. We affirm.
Background
On May 22, 2005, the 13-year-old complainant was getting ready to go to the pool with appellant, who was her grandmother's live-in boyfriend. The complainant covered the two-piece swimsuit that she was wearing with a shirt and shorts, at which time appellant told her not to cover up all the way and that she "should let it all hang out." She testified that appellant then told her to lie on the bed, he pulled the bottom of her swimsuit to the side, and "opened [her] private part and told [her she] was too mature to only be 13, that he had seen older women and they didn't have the things that [she] had." The complainant clarified that, when she stated that appellant "opened up" her "private part," she meant that he put his fingers inside of her. On cross-examination, the complainant testified that she did not yell, scream, or seek any help at the time of the alleged assault. She stated that she was scared to tell her grandmother what had happened. Three days later, however, she did tell her best friend's mother, Chell Marie Suchanek.
Suchanek, the outcry witness, testified that, as she was getting ready for a night out with her friends, she overheard the complainant, who was visiting her daughter, crying. The complainant told Suchanek that appellant had placed his fingers in her vagina, and she asked Suchanek not to tell anyone what had happened. While she did not immediately notify the police or take the complainant to the hospital for medical treatment, Suchanek did tell the complainant's mother about the alleged assault later that night, after Suchanek returned home from her night out. On cross-examination, Suchanek admitted that she had previously been convicted of making a false statement to police.
The complainant's mother contacted police after Suchanek informed her of the assault. Nine days after the assault, a Galveston police officer interviewed the complainant, and, two days later, a medical exam was conducted. No forensic kit was used during the medical exam. The nurse conducting the exam testified that the results were normal, meaning that there were no signs of injuries to the complainant's genitals such as redness, swelling, bruising, or scarring. The nurse further testified that this result was not uncommon because genitals heal quickly. That is, where a medical exam is not conducted within a day or two of the assault, the body frequently is able to heal itself before the exam is conducted.
Voir Dire
Appellant first argues that the State's improper voir dire deprived him of his due process right to be convicted by proof beyond a reasonable doubt. Specifically, he argues that the prosecutor's questions, concerning whether the individual venire members could reach a guilty verdict based solely on the testimony of one witness, impermissibly lowered the standard of proof. Appellant, however, has waived this argument.
To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a). It is well-established that, almost every right, constitutional and statutory, may be waived by failing to object. See Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986); see also Blackwell v. State, 193 S.W.3d 1, 20 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd) (holding that voir dire complaints were waived where appellant failed to object to questions at trial). Absent fundamental error, we cannot reverse on grounds of which the trial court was not made aware. See Boler v. State, 177 S.W.2d 366, 373 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd).
During voir dire, the State asked the venire members whether they could follow the law that allows a jury to convict on the testimony of one witness that has established all of the elements of the offense beyond a reasonable doubt. In some form, this question was generally asked of the entire venire panel no fewer than 13 times and, additionally, was put to each individual venire member. The State proceeded in this fashion for nearly 20 pages of the record before a single objection was made by defense counsel. (1) Because no timely objection to the State's voir dire questions was made in the trial court, nothing is presented for our review. See Tex. R. App. P. 33.1(a); see also Blackwell, 196 S.W.3d at 20.
Accordingly, we overrule appellant's first issue.
Sufficiency of the Evidence
Appellant next argues that the evidence was factually insufficient to sustain his conviction for aggravated sexual assault. Specifically, appellant argues that, because the uncorroborated testimony of an alleged child victim is factually insufficient to sustain a guilty verdict, his conviction should be reversed. We disagree.
Standard of Review
When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the conflicting evidence is against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 11. Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In our factual-sufficiency review, we must also discuss the evidence that, according to appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder alone determines the weight to be given contradictory testimonial evidence because that determination depends on the fact-finder's evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5.
Analysis
The indictment charging appellant with the aggravated sexual assault of a child alleges that appellant "intentionally or knowingly cause[d] the penetration of the sexual organ of [the complainant], a child who was [ ] younger than 14 years of age and not the spouse of the defendant, by the finger of the said ZIMBALISH ANTHONY SEGURA." Article 38.07 of the Texas Code of Criminal Procedure provides that a conviction for aggravated sexual assault of a child "is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred." Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005). Where the victim of the alleged offense was a person 17 years of age or younger, as is the case here, "the requirement that the victim inform another person of an alleged offense does not apply." Id. art. 38.07(b)(1); Carty v. State, 178 S.W.3d 297, 303 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd) (noting that testimony of child victim standing alone was factually sufficient to support conviction for sexual assault).
The evidence viewed in a neutral light shows that the complainant testified that appellant "opened [her] private part" by inserting his fingers into her vagina. Because the testimony of a child victim, standing alone, is factually sufficient to support a guilty verdict, it cannot be said that the jury's verdict was clearly wrong or manifestly unjust. See Carty, 178 S.W.3d at 303. In addition, as evidence contrary to the guilty verdict, appellant relies on (1) the lack of any physical injury to the complainant's genitals and (2) the admission of the State's outcry witness, Suchanek, to having been previously convicted of making a false statement to police. In light of the nurse's testimony that it was not uncommon to find no physical injury in sexual assault cases where more than one or two days pass between the assault and the examination, it cannot be said that the absence of any physical injury greatly outweighed the complainant's testimony or rendered the verdict clearly wrong or manifestly unjust. Similarly, Suchanek's prior conviction for making a false statement does not greatly outweigh the complainant's testimony or render the verdict clearly wrong or manifestly unjust. Therefore, we hold that the evidence was factually sufficient to sustain appellant's conviction.
Accordingly, we overrule appellant's second issue.
Conclusion
We affirm the judgment of the trial court.
George C. Hanks, Jr.
Justice
Panel consists of Justices Nuchia, Hanks, and Bland.
Do not publish. Tex. R. App. P. 47.4.
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