Roy Wallace Ward, Jr. v. State of Texas--Appeal from 238th District Court of Midland County

Opinion filed September 13, 2007

In The

Eleventh Court of Appeals

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   No. 11-06-00217-CR

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   ROY WALLACE WARD, JR., Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 238th District Court

Midland County, Texas

Trial Court Cause No. CR31282

O P I N I O N

The jury convicted Roy Wallace Ward, Jr. of the offense of aggravated sexual assault of a child and of two offenses of indecency with a child. The jury assessed his punishment at confinement for forty years for the aggravated sexual assault offense and at confinement for five years for each of the indecency offenses. We affirm.

Issues on Appeal

In three issues, appellant challenges the factual sufficiency of the evidence to support each of his convictions.

Standard of Review

To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.

Evidence Presented at Trial

The victim testified that, when she was twelve years old, she lived at the Renaissance Apartments with her mother and her sister. She knew appellant by his nickname ABucky,@ and he Ahung out@ at the apartment complex. One time when she was spending the night with Ashley Ervin who also lived in the apartment complex, appellant was there playing cards. Appellant asked her when they Awere going to get together to have sex.@ She told appellant no and that Ait was wrong because he was older@ than her. Appellant replied, AAge ain=t nothing but a number.@ She explained to him that Ait may not be nothing but a number but it@ mattered to her.

After that, the victim and Ashley left to get some snacks. They returned to the apartment, and the victim went upstairs and laid down fully clothed on Ashley=s sister=s bed. Appellant came into the bedroom uninvited and asked her again when they were going to have sex. Appellant began to rub her shoulders, and she told him to stop. When she turned over on her back, appellant got on top of her. She tried to push him off of her, but appellant started to kiss her chest, her breasts, and her stomach. He also touched her nipples. She again told him to stop. Appellant touched her vagina and then pulled her pants off of her. He pulled his pants down to his knees, pulled her panties to the side, and inserted his penis inside of her vagina. Appellant pinned her down on the bed by holding both her hands in one of his hands.

The victim testified that she did not call out for Ashley because she was scared and that appellant Acould have beat the crap out of [her] and then took it.@ She also stated that appellant had a star tattoo on his chest and other tattoos on his neck. The victim testified that appellant was wearing a condom and already had an erection when he came into the bedroom.

Ashley testified that she lived in the complex with her mother and her three sisters and that the victim had spent the night in her apartment several times. One night, when appellant was at the apartment, she and the victim went to get snacks. When they returned, appellant was still inside the apartment. The victim went upstairs. Later, the victim came and told her that appellant had Af----d@ her. The victim was nervous when she said this. Ashley testified that she told appellant to leave right after that. Ashley further testified that the victim had not been flirting with appellant.

Appellant testified that he was twenty-three years old and that he had visited Ashley=s apartment and had stayed there twenty or thirty minutes Aat the most.@ Appellant testified that he had never gone there to play cards. Appellant admitted that he had a star tattoo on his chest and explained that he had a larger tattoo that said AHoover@ near the star tattoo. A lot of people knew that he had the star tattoo because he had shown it and had bragged about it, but appellant had never told the victim about his AHoover@ tattoo. Appellant stated that he was never alone in the apartment with the victim, that he had never entered a bedroom with the victim, and that the victim had never seen him without his shirt on. Appellant also testified that on the night in question he was home with his wife and their children. Appellant stated that he and the victim had nothing but a Acordial@ and Afriendly@ relationship and that they had never had harsh words with each other.

Appellant called the victim as a rebuttal witness. She testified that she only remembered the star tattoo on his chest.

Factual Sufficiency

When the entire record is reviewed in a neutral light, the evidence is factually sufficient to support the jury=s verdicts. The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses= testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). Due deference must be given to the fact-finder=s determination, particularly concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d 10-11; Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). We review the fact-finder=s weighing of the evidence and cannot substitute our judgment for that of the fact-finder. Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 133. This court has the authority to disagree with the fact-finder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@ Johnson, 23 S.W.3d at 9. The evidence supporting the verdicts is not so weak that the verdicts are clearly wrong and manifestly unjust, and the verdicts are not against the great weight and preponderance of the conflicting evidence. The evidence supports the jury=s findings that appellant committed the offenses as alleged. The issues are overruled.

This Court=s Holding

The judgments of the trial court are affirmed.

TERRY McCALL

JUSTICE

September 13, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.