Alvarez Carr v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-94-042-CR

ALVAREZ CARR,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 93-216-C

O P I N I O N

A jury found Alvarez Carr guilty of one count of aggravated sexual assault and one count of indecency with a child and assessed punishment of imprisonment for thirty-three years and ten years, respectively, plus $10,000 in fines. See Tex. Penal Code Ann. 21.11, 22.021 (Vernon 1989). By six points of error, Carr challenges the sufficiency of the evidence supporting the jury's decision. We will affirm.

In resolving legal sufficiency-of-the-evidence issues, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Villalon v. State, 791 S.W.2d 130, 132 (Tex. Crim. App. 1990); Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). Reconciliation of conflicts and contradictions in the evidence is the province of the jury. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). The jury may believe some witnesses and refuse to believe others, or accept portions of a witness' testimony and reject other portions. Losada, 721 S.W.2d at 309. Bearing these rules in mind, we will examine the evidence adduced at trial.

The State's case rested primarily on three witnesses the victim, her mother and an examining physician. The victim of the offense, a five-year-old girl named Jessica, testified graphically at the trial. According to Jessica, Carr did "bad things," and had "touched [her] biscuit," the child's name for her vagina. Carr touched her genital area, she said, from the outside of her panties and had touched her "more than one time." On the suggestion of the prosecutor, the child demonstrated how Carr touched her "biscuit" by inserting her finger into the clenched fist of the prosecuting attorney. On redirect, she indicated that no one else had touched her the way Carr did.

The mother testified that she and Carr were dating in the fall of 1992 and that the victim spent time with Carr and his grandmother, spending most weekends at their house during this period. After Jessica began complaining about her vagina, the mother examined her, but did not take her to a doctor. On December 7, when she asked Jessica whether "anybody [has] been touching your biscuit," the mother said she answered, "yes, she said [Carr]." When confronted with this accusation, Carr became angry and left the house, effectively ending their romantic involvement. The next week, after Jessica's baby sitter called her home from work, the mother took Jessica to the doctor's office. Later that day, she called the police and this prosecution resulted. The mother also related that she took Jessica to Dr. Susan Nichol's office in February 1993.

Dr. Nichol testified about her examination of Jessica. Interviewing Jessica alone, Dr. Nichol was told by the child that "someone had placed their finger into [her] genital region." Jessica identified Carr to Dr. Nichol as that "someone." Jessica told the doctor that "this" occurred on more than one occasion, but did not specify how many times. Finally, Jessica told Dr. Nichol that only Carr had assaulted her. However, Dr. Nichol was unable to find physical evidence to confirm Jessica's statements.

In two points, Carr claims that the evidence is legally insufficient to establish the identify of the child's assailant point one being directed at the aggravated sexual assault count and point four being directed at the count alleging indecency with a child. However, Jessica pointed to Carr during the trial and used his name when describing the offenses. She also testified that Carr was the only person to touch her in that manner. Additionally, her mother and the examining physician testified that she identified Carr as the individual who assaulted her and had stated that he was the only one to do so. This evidence is sufficient to support a finding that Carr was responsible for the attacks on Jessica. See Villalon, 791 S.W.2d at 132; Moreno, 755 S.W.2d at 867. Points one and four are overruled.

By point three, Carr claims that the evidence is insufficient to establish that two separate offenses occurred. The State was not required to prove the exact date of the offenses, only that they occurred within the statute of limitations and before the indictment was returned. Ex parte Alexander, 685 S.W.2d 57, 59 n.1 (Tex. Crim. App. 1985). The victim testified that Carr touched her many times. She demonstrated with an anatomically correct doll how Carr touched her on the outside of her panties and how he had placed his hand inside her panties. She inserted her finger into the fist of the State's attorney when asked to demonstrate how Carr touched her. The jury heard evidence of Jessica's statements to her mother and to Dr. Nichol. We conclude that this evidence is sufficient to support a finding that Carr assaulted Jessica at least once and touched her at least once. See Villalon, 791 S.W.2d at 132; Moreno, 755 S.W.2d at 867. Point three is overruled.

By points two, five, and six Carr challenges the factual sufficiency of the evidence. Carr claims that we must set aside the verdict if, after reviewing all of the evidence, we find that the verdict is clearly wrong and unjust, citing Harris v. State, 866 S.W.2d 316 (Tex. App. San Antonio 1993, pet. ref'd), and Orona v. State, 836 S.W.2d 319 (Tex. App. Austin 1992, no pet.). The State claims that there is no factual-sufficiency review in criminal cases, citing Hull v. State, 871 S.W.2d 786, 789 (Tex. App. Houston [14th Dist.] 1994, pet. ref'd). Without deciding which party is correct, we overrule points two, five and six because the evidence is factually sufficient to support the verdict.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed November 16, 1994

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