TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00777-CR
v.
The State of Texas, Appellee
NO. 0960639, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING
In late August or early September 1995, the ten-year-old victim and her three brothers spent the weekend at her grandmother's house while their mother went out of town. The victim's grandmother was also out of town that weekend, so appellant and his wife, who rented a room at the grandmother's house, took care of the children. The victim testified that she was sleeping in her grandmother's room when she "felt something cold and wet and gooey . . . in her behind." The victim stated that her shorts and underwear were down in the back and that appellant "was trying to get into my butt." (1) The victim turned around and elbowed appellant in the nose. He cursed and went into the bathroom. The victim further testified that appellant returned to her bed, rubbed against her breast with his hand and tried to kiss her, but she knocked his hand off and turned her head away. Then appellant left the room.
The victim reported the incident to Brenda Guerra Brooke, a counselor at Becker Elementary, who also testified at trial. Brooke and the victim then told the victim's mother what happened and the mother contacted the police.
In two points of error, appellant contends that there was legally and factually insufficient evidence to show that he made sexual contact with the victim's anus to support the aggravated sexual assault conviction. (2) In reviewing a challenge to the legal sufficiency of the evidence, we must determine whether, in the light most favorable to the conviction, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991). Any inconsistencies are resolved in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). In a factual sufficiency review, the verdict is set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).
A person commits the offense of aggravated sexual assault when he intentionally and knowingly "causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor" and "the victim is younger than 14 years of age." Tex. Penal Code Ann. § 22.021. Appellant asserts that the evidence does not support the allegation that his penis touched the victim's anus. At trial, the victim stated, "I felt something cold and wet and gooey . . . in my behind." She also testified that appellant was "trying to get into her butt." Brooke, the school counselor, testified that the victim told her that appellant was trying to put his penis in her butt. Appellant argues that because no evidence was introduced to define or describe the word "butt," one must speculate as to whether it means "anus" or simply "buttocks." He further argues that in light of the fact that "butt" was not defined, the more rational explanation of the evidence is that appellant attempted to make contact with the victim's anus, but was thwarted by the victim elbowing him in the nose.
After reviewing the record, we conclude that the victim's testimony sufficiently described sexual contact as defined under the Penal Code. "[I]n examining the testimony of a child, the courts have kept in mind the child's lack of technical knowledge in accurately describing the parts of the body." O'Hara v. State, 837 S.W.2d 139, 142 (Tex. App.--Austin 1992, pet. ref'd) (citing Clark v. State, 558 S.W.2d 887, 889 (Tex. Crim. App. 1977); Chase v. State, 750 S.W.2d 41, 44 (Tex. App.--Fort Worth 1988, pet. ref'd); Bryant v. State, 685 S.W.2d 472, 474 (Tex. App.--Fort Worth 1985, pet. ref'd)). Although the victim in this case used the term "butt" instead of "anus," we conclude that she testified unequivocally that appellant committed sexual assault by contact. See id. The victim not only testified that appellant was trying to get into her butt, but also testified that she felt "something cold and wet and gooey . . . in her behind." (Emphasis added.) The victim's testimony was further corroborated by the testimony of her school counselor who recounted her discussion with the victim from which she concluded that the victim had been sexually abused.
We hold that the evidence is sufficient under either a legal or factual sufficiency standard. We believe the victim's testimony sufficiently described sexual contact. In viewing the victim's testimony in the light most favorable to the verdict, we conclude that there is sufficient evidence of aggravated sexual assault to sustain appellant's conviction. Further, we conclude that the verdict is not contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, appellant's two points of error are overruled.
The judgment of the trial court is affirmed.
Bea Ann Smith, Justice
Before Justices Powers, Kidd and B. A. Smith
Affirmed
Filed: October 8, 1998
Do Not Publish
1. The victim demonstrated appellant's contact for the jury with dolls.
2. Appellant does not challenge his conviction for indecency with a child by contact.
im then told the victim's mother what happened and the mother contacted the police.
In two points of error, appellant contends that there was legally and factually insufficient evidence to show that he made sexual contact with the victim's anus to support the aggravated sexual assault conviction. (2) In reviewing a challenge to the legal sufficiency of the evidence, we must determine whether, in the light most favorable to the conviction, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991). Any inconsistencies are resolved in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). In a factual sufficiency review, the verdict is set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).
A person commits the offense of aggravated sexual assault when he intentionally and knowingly "causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor" and "the victim is younger than 14 years of age." Tex. Penal Code Ann. § 22.021. Appellant asserts that the evidence does not support the allegation that his penis touched the victim's anus. At trial, the victim stated, "I felt something cold and wet and gooey . . . in my behind." She also testified that appellant was "trying to get into her butt." Brooke, the school counselor, testified that the victim told her that appellant was trying to put his penis in her butt. Appellant argues that because no evidence was intro