HERVY LEE CARTER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion filed July 22, 2008
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01425-CR
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HERVY LEE CARTER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-81846-04
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MEMORANDUM OPINION
Before Justices Moseley, Lang, and Mazzant
Opinion By Justice Moseley
        A jury convicted appellant, Hervy Lee Carter, of aggravated sexual assault of a child and of indecency with a child. The jury assessed punishment at fifteen years' confinement on the aggravated sexual assault conviction and two years' confinement on the indecency with a child conviction. Appellant contends the evidence was legally and factually insufficient to support the guilty findings on each conviction, and that the trial court erred in excluding certain evidence he offered at trial. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment.         In his first and second issues, appellant asserts that the evidence is legally and factually insufficient to support his convictions. We apply the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (same); see also Garza v. State, 213 S.W.3d 338, 344 (Tex. Crim. App. 2007) (factual sufficiency); Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (same); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006) (same).
        The State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the sexual organ of A.F., a child, to contact or penetrate the mouth, anus, or sexual organ of another person, including appellant. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii) (Vernon Supp. 2007). The State was also required to prove beyond a reasonable doubt that appellant engaged in sexual contact with A.F., a child, or caused A.F. to engage in sexual contact. See Tex. Penal Code Ann. § 21.11(a)(1) (Vernon 2003). A child for purposes of sections 22.021 and 21.11 is a person younger than 17 years and not the actor's spouse. Tex. Penal Code Ann. § 22.011. “Sexual contact” for purposes of section 21.11 means, with the intent to arouse or gratify the sexual desire of any person, any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person. Tex. Penal Code Ann. § 21.11(c).
        The testimony of the child victim alone is sufficient to support convictions for aggravated sexual assault of a child and indecency with a child. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd) (aggravated sexual assault of a child). We also take into account that children may use “unsophisticated language” when describing sexual acts and will uphold the conviction so long as a rational fact- finder could have found the element established beyond a reasonable doubt. See Wallace v. State, 52 S.W.3d 231, 235 (Tex. App.-El Paso 2001, no pet.); see also Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990); Karnes v. State, 873 S.W.2d 92, 96 (Tex. App.-Dallas 1994, no pet.).
        The record contains evidence that the victim, A.F. lived with her mother (“Mother”) most of her life. Her father (“Father”) went to prison shortly after A.F. was born, and he and Mother separated. Mother began seeing and living with another man, Lewis Carter (“Lewis”), who is appellant's brother. Eventually Mother and Lewis had four children together. After Father's release from prison, he and Mother had a strained relationship, battling over custody of A.F.
        A.F. was nine years old at the time of trial. She testified the alleged abuse occurred when she was approximately four years old, when Mother and appellant's girlfriend, whose name A.F. could not remember, went shopping and left the children home alone with appellant. A.F. was watching television and appellant told her to go to her brother's room. Appellant had her lay down on her back, he laid next to her, and “he touched [her] middle part” on the skin with his hand. Appellant's hand was “doing something” but A.F. could not remember what it was or if it hurt. Appellant also touched her “middle part” on the skin with the skin of “his middle part”, with his shirt on but his pants pulled halfway down. The prosecutor questioned A.F. to clarify what she meant by “middle part.” A.F. said her middle part was the part “to use the restroom.” The prosecutor then asked if that was “the front part that [her] panties cover” or the part “between [her] legs where the hole is where [she uses] the restroom.” A.F. responded that it was “the front.” A.F. then described appellant's “middle part” as the part he used “to pee.”
        A.F. said appellant told her not to tell anybody because he would get in trouble; however, she tried to report the event to her grandmother and to Mother. A.F. said grandmother said she did not have the time and did not care what A.F. had to say. The grandmother did not appear in court. Mother testified that A.F. did not report the alleged abuse to her.
        When A.F. was six, she told Father that Lewis and his brother, appellant, had been “messing with her.” Father did not push her for more information; rather, he reported the allegation to the police. Child Protective Services and the Plano Police Department investigated the allegations, conducting a forensic interview and a sexual assault nurse examination (“SANE”) of A.F. Officer Rick Gonzalez observed the interview and testified that he did not detect any “red flags” that would indicate A.F. was lying or being coached to make the accusations. A.F. also claimed her younger sister, V.F., had been molested; however, V.F. was interviewed and did not outcry at the time. Nurse Beth Hudson conducted the SANE exam and did not detect any physical signs of sexual abuse. Officer Mark Jones interviewed Father and testified that his demeanor seemed “appropriate” and he did not seem to have any motive or vendetta against appellant. When appellant was interviewed by Gonzalez, appellant seemed very matter-of-fact rather than shocked by the accusation, and he admitted touching A.F. when she was four to see if she had urinated on herself.
        At trial, Mother testified she did not believe A.F. had been molested because appellant never had the opportunity. Mother and appellant's girlfriend also testified they never went shopping together and left appellant alone in the house with A.F. or any of the children. Appellant testified, however, that at the time he may have had a different girlfriend.
        Appellant contends the evidence was legally and factually insufficient to support his convictions because A.F.'s testimony failed to prove contact by appellant with A.F.'s sexual organ. Specifically, A.F.'s identification of her “middle part” as the “front part that [her] panties cover” as opposed to “between [her] legs where the hole is where [she uses] the restroom” does not equate to her genitals as required by the offense. However, we do not expect child victims of violent crimes will testify with the same clarity and ability as is expected of mature and capable adults. Villalon, 791 S.W.2d at 134. A.F.'s description of her “middle part” as the part “to use the restroom” and the “front part that [her] panties cover” was sufficient for a rational fact-finder to find beyond a reasonable doubt that appellant touched her genitals with his hand and penis. See Wallace, 52 S.W.3d at 235; see also Villalon, 791 S.W.2d at 134; Karnes, 873 S.W.2d at 96.
        Appellant further contends the evidence was factually and legally insufficient to support his convictions because Mother and appellant's girlfriend denied that there was any opportunity for the abuse to occur and there was no additional evidence to support the conviction. However, the jury was in the best position to determine the credibility of the witness and the weight to give their testimony. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Moreover, because A.F. was four at the time of the alleged abuse, her testimony alone was sufficient to support the convictions. See Tex. Code Crim. Pro. Ann. art. 38.07.
        Considering all the evidence, including the above evidence, in the light most favorable to the verdict, we conclude a rational trier of fact could have found appellant guilty of the offenses charged beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Swearingen, 101 S.W.3d at 95. Further, after reviewing all the evidence in a neutral light, we cannot say the evidence supporting the convictions is so obviously weak as to undermine confidence in the factfinder's determinations or is greatly outweighed by contrary proof. See Garza, 213 S.W.3d 338 at 344; Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414. We overrule appellant's first two issues.
        In his third issue, appellant contends the trial court erred in excluding certain evidence he sought to offer at trial. We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). We reverse only when the trial court's decision was so clearly wrong as to fall outside the zone of reasonable disagreement. Id. We uphold the trial court's ruling if it was correct on any theory reasonably supported by the evidence and applicable to the case. Id.
        Here, appellant sought to have one of the police officers, Jones, testify about Father's statement about what A.F. told Father regarding the abuse. Jones testified Father told him A.F. said appellant offered her $1.50 to come into the bedroom with him, he took off his clothes, and began “rubbing on [A.F.'s] private parts.” The State objection when defense counsel asked Jones if A.F. said they were interrupted by her sister knocking on the door. Outside the presence of the jury, Jones explained that Father said A.F. told him V.F. interrupted by knocking on the door, and appellant slapped V.F. The State argued the statement was hearsay and the trial court sustained the objection.
        Appellant first contends Jones's testimony falls under the outcry exception because the testimony was recounting A.F.'s first statements to an adult regarding the abuse. See Tex. Code Crim. Pro Ann. art. 38.072. However, assuming without deciding that the outcry exception may exempt A.F.'s statement to Father about the abuse from the hearsay rule, appellant introduced an additional layer of hearsay when he sought to have Jones testify to Father's out of court statement. Appellant did not show any exception for this additional layer of hearsay. See Tex. R. Evid. 805 (hearsay within hearsay not admissible unless each part of combined statement is within exception to hearsay).
        Appellant also contends Jones's testimony could be used to impeach Father and A.F. as prior inconsistent statements. Here, both Father and A.F. testified. Therefore, appellant could not use extrinsic evidence, Jones's testimony, to impeach them without first confronting them with the allegedly inconsistent statements and affording them an opportunity to admit or deny the statement. See Tex. R. Evid. 613(a) (“if witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted”). The record shows that neither Father nor A.F. were ever specifically questioned about whether A.F. told Father that she and appellant were interrupted by her sister. Thus, appellant could not offer extrinsic evidence of a purported prior inconsistent statement. See Tex. R. Evid. 613(a). We conclude the trial court did not abuse its discretion in excluding the evidence. See Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002); see also Willover, 70 S.W.3d at 845. We overrule appellant's third issue.
        We affirm the trial court's judgment.
 
        
 
 
 
 
 
 
 
 
 
        
 
 
 
 
 
JIM MOSELEY
 
 
 
        
 
 
 
 
 
JUSTICE
 
 
 
 
 
Do Not Publish
Tex. R. App. P. 47.2(b)
061425F.U05