THEODORE ROOSEVELT WASHINGTON, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed November 15, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01379-CR
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THEODORE ROOSEVELT WASHINGTON, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F88-95537-J
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OPINION PER CURIAM
Before Justices Howell, Baker and Burnett
        Theodore Roosevelt Washington appeals his conviction for aggravated sexual assault of a child under age fourteen. Punishment was assessed at fourteen years' confinement.
        Appellant's attorney has filed a brief in which appellant's attorney has concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no meritorious grounds to be advanced. A copy of counsel's brief has been delivered to appellant, and appellant has been advised that he would be given the opportunity to examine the appellate record and that he had a right to file a pro se brief. No pro se brief has been filed. Counsel has raised two arguable points of error: 1) the child complainant was not competent to testify; and 2) the evidence is insufficient to support the conviction. We affirm the trial court's judgment.
        In his first arguable point, appellant contends that the four-year-old complainant was not competent to testify. Children are competent witnesses unless the trial court determines that the child does not possess sufficient intellect to relate facts in response to questions. See Tex. R. Crim. Evid. 601(a). The competency of any witness to testify is a question for the trial court, and its ruling will not be disturbed absent an abuse of discretion. Fields v. State, 500 S.W.2d 500, 502 (Tex. Crim. App. 1973). At the competency hearing, the complainant testified that he was four years old and that he knew that a lie was bad and that he would get a whipping if he told a lie. He named his mother and father, identified appellant as Daddy Popa, his grandfather, and talked about his nursery school and teacher. He counted to five, recited the alphabet and identified colors. He also related that Daddy Popa made him throw up because he put his penis in his (the complainant's) mouth. Water came out of the penis and it tasted bad. He testified that this happened only once.
        Appellant argues that the child was incompetent to testify because "he was impeached by his own mother as to his inconsistent statements of how many times the alleged events with his Daddy Popa occurred." The complainant's mother testified that her son told her that Daddy Popa had put his penis in his mouth "times and times again." We are not persuaded by appellant's argument. Inconsistencies in a child's testimony will not, standing alone, make him an incompetent witness. Fields, 500 S.W.2d at 503.
        The complainant's testimony indicated that he was capable of intelligent observation, recollection and narration. He was able to understand the questions asked and to frame intelligent replies. He testified that he knew the difference between telling a lie and telling the truth, and that he would tell the truth. We hold that the trial court did not abuse its discretion in allowing the complainant to testify. The first arguable point is overruled.
        In his second arguable point, appellant contends that the evidence is insufficient to support the verdict. The standard for appellate review of the sufficiency of the evidence is to view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Marroquin v. State, 746 S.W.2d 747, 750 (Tex. Crim. App. 1988). Appellant argues specifically that there is no evidence that the child's mouth was penetrated by appellant's penis, as alleged in the indictment, because the child spoke in terms of "the penis" rather than "his penis."
        The complainant testified that appellant "put the penis in my mouth." He testified further that he used to call the penis a "thing," but that his mother had taught him the word penis after he told her what Daddy Popa did. The complainant's mother testified that her son told her that Daddy Popa kept putting "that thing he pees with" in his mouth. We conclude that this evidence, when viewed in the light most favorable to the verdict, sufficiently identifies the penis that penetrated the complainant's mouth as appellant's penis. We overrule arguable point of error two.
        We have carefully reviewed the record and counsel's brief and agree that the appeal is wholly frivolous and without merit. Further, we find nothing in the record that might arguably support the appeal.
        The judgment is affirmed.
 
                                                          PER CURIAM
 
Do Not Publish
Tex. R. App. P. 90
 
881379F.U05
 
 
File Date[11-14-89]
File Name[881379F]