Opinion issued February 1, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-01013-CR
CHARLES MATTHEW MILTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Cause No. 986295
MEMORANDUM OPINION
A jury found appellant, Charles Matthew Milton, guilty of committing aggravated sexual assault (1) against his 13-year-old daughter, J.W., and assessed punishment at 20 years in prison. In four issues, appellant challenges the legal and factual sufficiency of the evidence.
We affirm.
Background
J.W.'s parents, Jacqueline W. and appellant, were never married to one another. J.W. lived with her mother, but would spend some weekends with appellant. When she stayed with appellant, J.W. would sleep in the same bed with her step-sister. One Sunday night in December 2003, while staying with appellant, J.W. went to bed around 10:00 p.m. She was awoken in the middle of the night to find appellant touching her "private part" with his tongue. J.W. "jerked a little," and appellant ran from the room. J.W. then got up and went to the bathroom. J.W.'s step-sister never woke up during or after the assault.
J.W. initially did not tell anyone about the incident, but eventually confided in her friend Shawana. Then, in February 2004 while attending a Bible study class with Shawana, J.W. began to cry during a lesson about honoring one's mother and father. After J.W. left the room crying, Shawana told the bible study teacher about the sexual assault. The teacher convinced J.W. to tell her mother. J.W.'s mother took her to Texas Children's Hospital where she was examined and spoke with a police officer. Legal and Factual Sufficiency
In four points of error, appellant contends that the evidence was legally and factually insufficient to convict him of aggravated sexual assault.
A. Standards of Review
In a legal-sufficiency review, we view the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The standard is the same for both direct and circumstantial evidence. Sutherlin v. State, 682 S.W.2d 546, 548-49 (Tex. Crim. App. 1984). In determining the legal sufficiency of the evidence to show appellant's intent, and when faced with a record that supports conflicting inferences, we "must presume--even if it does not affirmatively appear in the record--that the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution." Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. See 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 verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (tex. Crim. App. 2000). 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, 416-17 (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 conducting a factual-sufficiency review, we must also discuss the evidence that, according to the 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, 29 S.W.3d at 562. The fact-finder alone determines what weight to place on 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 410 n.5.
B. Contact with Appellant's Mouth
Pursuant to Penal Code section 22.021, a person commits aggravated sexual assault if he intentionally or knowingly causes the sexual organ of a child younger than 14 years of age to contact his mouth. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(ii), 2(B) (Vernon 2003). In his first and second points of error, appellant challenges the legal and factual sufficiency of the evidence to show that he contacted J.W.'s sexual organ with his mouth, as alleged in the indictment. At trial, J.W. testified that appellant touched her "private part," which she clarified was her sexual organ, with his tongue. Appellant contends that, "in the common usage of the word 'mouth,' the tongue is not included . . . ." We disagree.
In Johnson v. State, we concluded that for purposes of Penal Code section 22.021 the tongue is part of the mouth. Johnson v. State, 882 S.W.2d 39, 41 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd) ("Common sense and common usage leads [sic] us to conclude that the legislature intended the word 'mouth' to include its parts, such as teeth and tongue."). We reaffirm that conclusion and reject appellant's contention. We hold that the evidence was not legally or factually insufficient to support appellant's conviction for aggravated sexual assault, as contended by appellant.
We overrule appellant's first two points of error.
C. J.W.'s Credibility
In his third and fourth points of error, appellant contends that J.W.'s testimony was not credible. Appellant asserts that, "at some point the credibility [of] the complainant is so undermined that a reviewing court cannot have confidence in a verdict supported solely by the complainant's testimony." Appellant first contends that J.W.'s credibility was "so undermined" because no physical evidence corroborated J.W.'s claim that appellant had assaulted her, including her "medical report." Contrary to appellant's contention, the lack of physical or forensic evidence is but a factor for the jury to consider in weighing the evidence. See Johnson v. State, 176 S.W.3d 74, 78 (Tex. App.--Houston [1st Dist.] 2004, pet. ref'd) (holding that differences in witness testimony and lack of physical evidence are factors for jury to consider in weighing evidence). As mentioned, J.W. testified that appellant contacted her sexual organ with his tongue (i.e., mouth). In other words, J.W. testified that appellant committed the offense of aggravated sexual assault. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(ii), 2(B). It is well-established that a child victim's testimony alone is sufficient evidence to support a conviction for aggravated sexual assault. Tex. Code Crim. Proc. Ann. art. 38.07(Vernon 2005); Perez v. State, 113 S.W.3d 819, 838 (Tex. App.--Austin 2003, pet. ref'd); Empty v. State, 972 S.W.2d 194, 196 (Tex. App.--Dallas 1998, pet. ref'd).
Appellant claims that J.W.'s testimony was not credible because "it would have been impossible for appellant to have committed the offense, for J.W. to have "jerked a little bit," and "for J.W. to have gone to the bathroom, all without her sister noticing it." Despite appellant's contentions, such evidence does not definitively undermine J.W.'s testimony.
It was the jury's role as fact finder to resolve any discrepancies or inconsistencies in the evidence, to determine the credibility and weight to be given the evidence, and to draw reasonable inferences from the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). Concomitantly, the jury was free to believe or disbelieve all or part of any witness's testimony, including that of J.W. See Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998). Here, the jury chose to believe J.W.
We recognize that one difference between the legal and factual sufficiency standards is that the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury's on these questions "albeit to a very limited degree." See Watson, 204 S.W.3d at 416-17. The Court of Criminal Appeals has recently reiterated that our factual-sufficiency jurisprudence still requires us to afford 'due deference' to the jury's determination." Marshall v. State, No. AP-75048, 2006 WL 3733198, at *5 (Tex. Crim. App. Dec. 20, 2006) (citing Johnson, 23 S.W.3d at 9). Based on the record before us and the contentions asserted by appellant challenging the sufficiency of the evidence, the jury in this case was in the best position to evaluate J.W.'s credibility, and we give proper deference to that determination.
After applying the appropriate standards of review, we hold that the evidence was legally and factually sufficient to support appellant's conviction for aggravated sexual assault.
We overrule appellant's third and fourth issues.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Nuchia, Keyes, and Higley.
Do not publish. See Tex. R. App. P. 47.2(b).
1. See Tex. Pen. Code Ann. § 22.021 (Vernon 2003).