COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-224-CR
CHIOKE HASANE MANNIE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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A jury convicted appellant Chioke Hasane Mannie of aggravated sexual
assault of a child and indecency with a child and assessed his punishment at
twenty-five years’ confinement and eight years’ confinement, respectively. The
trial court sentenced appellant accordingly, ordering the sentences to run
concurrently. Appellant brings two issues on appeal. We affirm.
1
… See Tex. R. App. P. 47.4.
In his first issue, appellant claims the evidence is legally and factually
insufficient to support his conviction for aggravated sexual assault.
In reviewing legal sufficiency, we consider all the evidence in the light
most favorable to the verdict and determine whether any rational juror, based
on the evidence and reasonable inferences supported by the evidence, could
have found the essential elements of the crime beyond a reasonable doubt.2
When reviewing factual sufficiency, we view all the evidence in a neutral
light.3 We then ask whether the evidence supporting the conviction, although
legally sufficient, is nevertheless so weak that the factfinder’s determination is
clearly wrong and manifestly unjust or whether conflicting evidence so greatly
outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. 4
2
… Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007);
Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001).
3
… Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert.
denied, 129 S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex.
Crim. App. 2006).
4
… Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008);
Watson, 204 S.W.3d at 414-15, 417.
2
The testimony of a child sexual assault victim, standing alone, is
sufficient to support a conviction for aggravated sexual assault.5 Courts give
wide latitude to testimony given by a child victim of sexual abuse.6 The
victim’s description of what happened to her need not be precise, and she is
not expected to testify at the same level of sophistication as an adult. 7 The
victim’s testimony is not required to be validated by medical or physical
evidence. 8
Appellant contends the evidence is legally and factually insufficient to
support his conviction for aggravated sexual assault because there was no
evidence to show that he penetrated R.H.’s sexual organ. However, neither the
indictment nor the court’s charge alleged penetration; the issue in this case was
whether the evidence showed that appellant intentionally or knowingly caused
R.H.’s sexual organ to contact his sexual organ.
The record shows that R.H. was fourteen years old when she testified at
appellant’s trial. She testified that, when she was twelve, appellant grabbed
5
… Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); see Garcia v.
State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978).
6
… See Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990).
7
… See id.
8
… Garcia, 563 S.W.2d at 928; Kemple v. State, 725 S.W.2d 483, 485
(Tex. App.—Corpus Christi 1987, no pet.).
3
her arm, took her upstairs to his apartment, put her on a bed, pulled her shorts
and panties down, and penetrated her with his penis. She stated that she had
“no doubt” that appellant’s sexual organ penetrated or contacted her sexual
organ. A sexual assault nurse examiner, having examined R.H., testified that
R.H. told her she had been raped and that her assailant had “put his penis in my
vagina.” Further, appellant’s semen was found in the crotch of R.H.’s panties.
We hold that the evidence was sufficient to support the jury’s verdict that
appellant committed aggravated sexual assault by causing R.H.’s sexual organ
to contact his sexual organ. 9
In support of his claim that the evidence is factually insufficient, appellant
points to testimony that there were no physical signs of assault, that vaginal
swabs showed no evidence of spermatozoa or other profile, that a sample
collected from R.H.’s breast did not reveal sufficient data to conclude whether
it contained appellant’s DNA, that R.H. did not display reactions that would be
expected of a victim of sexual assault, and that she gave different versions to
different witnesses of how the assault occurred.
We defer to the jurors’ resolution of credibility issues and conflicts in the
testimony. Considering all the evidence in a neutral light, we hold that the
9
… See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235
S.W.3d at 778; Garcia, 563 S.W.2d at 928.
4
jury’s resolution of the facts in this case is not clearly wrong and manifestly
unjust, nor is the evidence supporting the verdict so weak or so outweighed by
conflicting evidence that the jury’s determination is manifestly unjust. 10
Because we hold that the evidence is legally and factually sufficient to
support appellant’s conviction for aggravated sexual assault, we overrule his
first issue.
In his second issue, appellant asserts that the trial court erred by “not
providing an alternate juror at jury selection” and by not replacing the excused
juror.
After the jury was sworn but before testimony began, one of the jurors
suffered a heart attack. Appellant agreed that the juror was disabled, and the
trial court, acting under authority of code of criminal procedure article 36.29(a),
dismissed the disabled juror and proceeded to trial with the remaining eleven.11
There is nothing in the record to show that appellant objected to the trial
court’s failure to appoint alternate jurors either during the trial selection process
or when the jury panel was seated. Accordingly, appellant’s claim that the trial
10
… Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414–15, 417.
11
… See Tex. Code Crim. Proc. Ann. art. 36.29(a) (Vernon Supp. 2008).
5
court erred by not providing an alternate juror, therefore, is forfeited by his
failure to raise an objection.12
As to his claim that the trial court erred by not replacing the excused
juror, appellant concedes that there is no authority supporting his position but
he asserts that proceeding with only eleven jurors violated “his right to be tried
by twelve jurors as guaranteed by the Texas [c]onstitution.” The Texas
constitution, however, explicitly provides that a trial can proceed with as few
as nine jurors if a juror is dismissed because of a disability.13
In this case, after appellant agreed that the juror had become disabled,
the trial judge dismissed the disabled juror and proceeded to trial with the
remaining eleven.14 Because the state constitution provides that trial may
proceed with as few as nine jurors when up to three become disabled, there is
no constitutional violation, and we overrule appellant’s second issue.
12
… See Tex. R. App. P. 33.1. Moreover, even if appellant had preserved
his claim, under article 33.011(a) of the code of criminal procedure, providing
alternate jurors is discretionary with the trial court. See Tex. Code Crim. Proc.
Ann. art. 33.011(a) (Vernon Supp. 2008) (“judge may direct that not more than
four jurors in addition to the regular jury be called and impaneled to sit as
alternate jurors”) (emphasis added).
13
… See Tex. Const. art. V, § 13.
14
… See Tex. Code Crim. Proc. Ann. art. 36.29(a) (Vernon Supp. 2008).
6
Having overruled both of appellant’s issues, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: CAYCE, C.J.; GARDNER and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 23, 2009
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Chioke Hasane Mannie v. State
Combined Opinion