WILLIE JAMES ROCKER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as MODIFIED and Opinion Filed December 9, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01364-CR
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WILLIE JAMES ROCKER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-01109-RN
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MEMORANDUM OPINION
Before Justices Moseley, FitzGerald, and Lang-Miers
Opinion By Justice FitzGerald
        A jury convicted Willie James Rocker of aggravated sexual assault of J.S. and assessed punishment at twelve years' imprisonment and a $1200 fine. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. In a single cross-point, the State seeks modification of the trial court's judgment to reflect that the sex offender registration requirements apply to appellant and to include the victim's age at the time of the offense. We conclude all dispositive issues are clearly settled in law, so we issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4. The factual nature of this case is known to the parties. Therefore, we do not recount these matters in detail.   See Footnote 1  We modify the judgment and, as modified, affirm.
Sufficiency of the Evidence
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). The fact- finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.). In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether the fact- finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
        To obtain a conviction for aggravated sexual assault, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the penetration of the mouth of J.S., without her consent, with appellant's sexual organ and that appellant acted in concert with another who engaged in the sexual assault of J.S. during the course of the same criminal episode. See Tex. Penal Code Ann. § 22.021(a)(1)(A)(ii), (a)(2)(A)(v) (Vernon Supp. 2008). Appellant does not challenge the fact that he caused the penetration of J.S.'s mouth (and sexual organ) with his sexual organ, and that-during the same episode-his brother also caused the penetration of J.S.'s sexual organ (and mouth) with his sexual organ. The issue before us is whether the sexual activity involving the two men occurred with J.S.'s consent.
        At trial, J.S. testified she was slapped, threatened, and forced to engage in sexual acts for a period of hours with appellant and his brother simultaneously. J.S. testified the two men ripped her shirt, bra, and panties off before sexually assaulting her. She testified further that, after the assault, she was forced to shower and remain in the apartment until appellant allowed her to leave. When he did permit her to leave, she was unable to find all her clothing and fled the apartment with a towel wrapped around her.
        The apartment where the conduct in question took place belonged to a female acquaintance of J.S. The female acquaintance testified at trial that she was at the apartment when J.S. claimed to have been assaulted. She never heard J.S. call out for help. In fact, the acquaintance testified that at one point she came out of her room and saw the two men simultaneously having sexual contact with J.S., but she stated J.S. did not look like she was being forced to do anything.
        The police officer called to the scene testified appellant and his brother tried to escape out an apartment window when the police arrived, but both were apprehended. A search of the apartment turned up J.S.'s bra and its torn-off strap stuffed in cushions and bedding on the couch; her ripped shirt was found in the kitchen trash can.
        Appellant contends the evidence is legally and factually insufficient because J.S.'s testimony was not credible or believable. Appellant essentially argues the jury should have believed his and the female acquaintance's testimonies over the conflicting account of J.S. Appellant argues the credible evidence shows the sexual contact was consensual and not forced, J.S. was free to leave the apartment at any time, and J.S. never cried out for help to a person who was nearby in the bedroom; thus, he contends, the evidence is insufficient to prove lack of consent. The State responds that the evidence is legally and factually sufficient to support the conviction because the jury resolved any conflicts in the evidence. We agree with the State.
        The jury is in the best position to evaluate the credibility of witnesses and the evidence, and we must afford due deference to its determination. See Marshall, 210 S.W.3d at 625. It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). The jury may choose to believe some witnesses and disbelieve others. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). The jury's determination to believe J.S.'s account, and to disbelieve the conflicting accounts of other witnesses, does not render the evidence legally or factually insufficient.
        Viewed under the proper standards, we conclude the evidence is legally and factually sufficient to support appellant's aggravated sexual assault conviction. See Roberts, 220 S.W.3d at 524; Lane, 151 S.W.3d at 191-92. We resolve appellant's two issues against him.
Cross-Point
 
        In a cross-point, the State asks us to modify the trial court's judgment to reflect that the sex offender registration requirements apply to appellant and to include the victim's age at the time of the offense. The record shows appellant is subject to the sex offender registration requirements of Chapter 62 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 62.001(5)(A) (Vernon Supp. 2008). However, the trial court's judgment states the sex offender registration requirements do not apply to appellant. Thus, the trial court's judgment is incorrect. We sustain the State's cross-point. We modify the trial court's judgment to show the sex offender registration requirements apply to appellant and the age of the victim at the time of the offense was seventeen. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
        As modified, we affirm the trial court's judgment.
 
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
071364F.U05
 
Footnote 1 See Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681 (Tex. 2006) (appellate court affirming jury verdict must provide basic reasons for decision but need not give “detailed recitations” of evidence).