WESLEY LAMON SAVANNAH, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed December 29, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-01554-CR
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WESLEY LAMON SAVANNAH, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F08-73797-UK
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OPINION
Before Justices Richter, Lang, and Myers
Opinion By Justice Myers
        A jury convicted Wesley Lamon Savannah of sexual assault of a child, found one enhancement paragraph true, and assessed punishment at sixty years' imprisonment. In a single issue, appellant contends the evidence introduced at trial was insufficient to support the verdict. We affirm the trial court's judgment.
Evidence Presented
 
        W.G. testified appellant sexually assaulted her on November 25, 2008, when she was sixteen years of age. Earlier that day, W.G. had taken three Klonopin pills that were prescribed to her for anxiety. She took them at about 1:00 p.m. while attending her high school. W.G. said she felt “kinda of tired and a little woozy, I guess” after taking the pills. At about 7:00 p.m., W.G. attended a church bonfire with L.L., a friend from her church. After the bonfire ended, W.G. called her mother and asked if she could spend the night at L.L.'s house. Her mother said yes. However, L.L.'s parents said it was not a good night for a friend to stay overnight. Because she did not want to go home, W.G. went to her friend S.R.'s house, although she knew her mother did not allow her to “hang out” with S.R. W.G. arrived at S.R.'s house at about 10:00 p.m. While there, she drank “a half of a 40-ounce Corona beer.” At around midnight, S.R. said some friends “they could talk to” were coming to pick them up. A short time later, appellant and Andrew King arrived in an SUV. King was driving, and appellant was in the front passenger seat. W.G. testified she had never met either appellant or King before that night. After W.G. and S.R. got into the back seat, King drove to a “bootleg place,” where they purchased some “Grey Goose and Crown Royal.” Then, they drove to a house, but no one had a key. S.R. and King disappeared somewhere. W.G. and appellant stood at the front of the house. W.G. said she felt “kind of drunk and everything” because she had consumed one or two cans of beer while in the SUV. Appellant began kissing W.G. and “feeling me up and stuff.” W.G. told appellant she did not feel “comfortable doing this.” Appellant suggested they crawl through the front window. Appellant lifted up a window, and both he and W.G. climbed through it. S.R. and King were already inside the house.
        W.G. testified appellant mixed vodka with orange juice and gave it to her. She took “a few sips” from the drink. W.G. testified she did not remember everything because she “blacked out five or six times” while at the house. W.G. did remember sitting on a couch next to appellant for about forty-five minutes. She remembered walking down a hallway toward the bathroom and seeing appellant in the hallway. The next thing she remembered was waking up in a child's room that had Spiderman pictures on the wall. She was laying naked on a bed, and appellant was laying naked on top of her. When she realized appellant was having sex with her, she asked him what he was doing and told him to stop, then she blacked out again. When she awoke again, she begged appellant to stop, then asked him to at least use a condom. When she told appellant to stop, appellant said, “[N]o, I don't want to stop. You should wait till I nut.” W.G. testified that at some point, she performed oral sex on appellant because “he had asked me to” and she did not know if he would hurt her if she refused. W.G. said appellant was “very aggressive when he was doing everything.” The next thing W.G. remembered was waking up on the living room couch with all of her clothes on. S.R. had awakened her at three or four o'clock in the morning and said it was time to go back to her house. W.G. did not remember the ride back to S.R.'s house, but she remembered waking up on S.R.'s couch. When she awoke, W.G. went into S.R.'s bedroom and said, “[I] think I got raped last night.” S.R. replied, “[O]h, that kind of stuff happens,” and “[N]o, I think you wanted to.”
        When W.G. got home, she did not tell her family about the sexual assault because it was the Thanksgiving holiday and she felt “too ashamed, embarrassed, and upset.” The day after the sexual assault, W.G. noticed bruising on her thighs. On the following Tuesday, December 2, 2008, W.G. told her ex-boyfriend about the sexual assault. He encouraged her to tell an adult. W.G. talked to a school counselor and a police officer at the school about the sexual assault. The officer called W.G.'s mother, who came to the school immediately. W.G.'s father and younger brother also came to the school. W.G. told her parents about the sexual assault. W.G.'s mother took W.G. to a hospital, but they were told it was too late to do a rape kit or any type of drug test to see if anything was in the drink she had consumed. W.G. then went to her pediatrician and was examined by a nurse practitioner. W.G.'s mother and the nurse saw the bruises on W.G.'s thighs. On December 11th, W.G. gave a written statement to the police and viewed a photographic lineup. W.G. selected two different pictures from the lineup. W.G. testified the officer who showed her the lineup did not pressure her to pick out anyone. W.G. testified she was positive appellant was the person who sexually assaulted her.
        During presentation of defense evidence, appellant's counsel recalled W.G. W.G. testified she had consensual sex with a male friend one or two days after the sexual assault by appellant. The boy was her age. W.G. said she felt “really nasty” after the sexual assault and did not care about herself, so she had “normal sex” with her friend. W.G. said she did not believe the bruises on her body resulted from sex with her friend because “it was not rough,” but that she really did not know whether the bruises came from the sexual assault by appellant or the sex she had with her friend.
        S.R. testified she has known W.G. for five years, appellant was a friend that she knew “pretty good,” and appellant knew she was sixteen years old and attending high school. S.R. had been to appellant's house “two or three times” before the night of the incident. S.R. testified that on November 25, 2008, W.G. came to her house at about 9:00 p.m. or 10:00 p.m. S.R. called appellant to see if they could “hang out” with him. A short time later, appellant and his “cousin” picked up S.R. and W.G., then drove to a “bootleg house” to get alcohol. S.R. testified she had never met King before that night, and she did not recall his name. After getting alcohol, King drove to his house. They all entered the house through the front door because King had a key. They sat in the living room and watched television while drinking alcohol. S.R. denied using any drugs that night. According to S.R., there were two couches in the living room. Appellant and W.G. sat on one couch, and S.R. and King sat on the other couch. Appellant was “touching” W.G., and W.G. told appellant to stop. Appellant stopped. S.R. testified that although she was intoxicated and did not recall everything, she remembered seeing W.G. drink “a good amount.” W.G. seemed “more and more impaired” as the evening progressed. S.R. saw appellant and W.G. go to a back bedroom. Appellant and W.G. were in the bedroom for about one to two hours. At one point, S.R. heard a “spanking noise” coming from the back bedroom. S.R. testified the noise sounded like “two bodies are colliding.” S.R. believed appellant and W.G. were having sex. After about two hours, appellant and W.G. returned to the living room. W.G. looked “sad and just like moping at that point.” They all sat in the living room for a while, then King drove S.R. and W.G. back to S.R.'s house. S.R. and W.G. went to S.R.'s bedroom and sat down. W.G. said, “[I] think I got raped.” S.R. testified she could not remember what she said, but she remembered that they “talked about it.” About a week later, the police came to S.R.'s house. On December 11th, S.R. viewed a photographic lineup and was asked to select the picture of the person she saw go into a bedroom with W.G. S.R. selected appellant's photograph.
        Andrew King testified he and appellant grew up together and were very close, but they were not actually related to one another. On the date of the incident, King was twenty-seven years old and appellant was twenty-six. King told the jury he had prior convictions for family violence assault in 2001 and 2004, failure to identify himself as a fugitive in 2001 and 2004, and had a felony drug conviction in 2007. On November 25, 2008, King and appellant were riding around in King's SUV. S.R. called appellant and asked him to pick her up. King drove appellant to S.R.'s house. When they arrived, both S.R. and W.G. were already intoxicated. King testified he had never met W.G. before that night, but he had met S.R. once before. King denied knowing both girls were underage. After picking up W.G. and S.R., King drove to a “bootleg” in South Dallas, purchased “Crown Royal and Grey Goose,” then drove to his house. At the house, they all started drinking and smoking marijuana. According to King, appellant sat next to him on the couch “most of the time.” King testified he saw appellant and W.G. “playing around” with each other, but he never saw appellant fondle W.G. King said he did see appellant kiss W.G. on her cheek and neck, but he did not hear W.G. tell appellant to stop. King said he never saw appellant and W.G. actually enter the back bedroom, but he did see them both walking towards the back bedroom. Because King heard a “smack sound like a hand touching the flesh,” he assumed the bedroom door was open but he did not see it open. After about fifteen minutes, both appellant and W.G. came back to the living room and sat on the couch. W.G. was awake initially, but she soon passed out. King said they were all “highly intoxicated.” At this point in the evening, King went to his bedroom and passed out. When he awoke at about 8:00 a.m., the girls were gone. He later learned appellant had used his vehicle to take the girls home.
        Kitty Clark, the high school counselor, testified W.G. came to the nurse's office in December 2008 and was “very upset and crying.” Based upon what W.G. had told her, Clark called W.G.'s parents and asked them to come to the school. W.G.'s mother and father came to the school and talked with W.G. Officer Matt Clark, a student resource officer assigned to the school, testified he was called to the nurse's office on December 2, 2008 and met with W.G., who was “upset, crying.” W.G. told him about an incident that had happened to her the previous week. After talking briefly with W.G., Officer Clark contacted W.G.'s parents.
        W.G.'s mother testified an officer called her to come to the school on December 2, 2008. When she and Father arrived at the nurse's office, they saw W.G., a school counselor, and a police officer in the room. W.G. was crying. W.G. told them about a sexual assault one week ago. Mother took W.G. to a hospital, but was told they could not do a rape kit because of the elapsed time since the sexual assault. The next day, Mother took W.G. to the pediatrician for examination and testing for sexually transmitted diseases (STDs). Mother testified that on the night of the church bonfire, she thought W.G. was spending the night with a church friend, and that W.G. was not allowed to hang out with S.R. because of “the influence.” Mother also said she saw bruises on W.G.'s “arms and torso, her legs, and her rear end.”
        Melissa Demasi, a certified pediatric nurse practitioner, testified she examined W.G. on December 3, 2008. She talked with W.G. alone, then gave her a head-to-toe examination. Demasi noticed bruising in between W.G.'s thighs that appeared to be old bruises because they were “yellowish” in color. Demasi also tested W.G. for pregnancy and STDs.
        Dr. Ashley Lind, senior clinical director for Dallas Children's Advocacy Center, testified as an expert in child abuse, and stated she has never met W.G. Lind told the jury that seventy-five percent of children who have been abused do not tell an adult person within the first year, and some choose not to tell until adulthood. Some children tell everything when they disclose information about an event, and some reveal a little information at a time to see how it will be received. Teenage sexual abuse victims often share information with a friend and ask them to keep a secret, or they may disclose to someone outside of the family. Lind testified that research shows only about two percent of all allegations of sexual abuse are shown to be false, and within that percentage, most false allegations concern coaching by a parent who is in the midst of a divorce.
        Appellant denied going into a bedroom with W.G., laying naked on top of W.G., inserting his penis in W.G.'s vagina, or having any type sex with W.G. Appellant testified he had prior convictions for burglary of a habitation, burglary of a vehicle, and failure to identify. On November 25, 2008, appellant and King were riding around when S.R. called him to pick her up. When they arrived at S.R.'s house, W.G. was with her. Appellant had never met W.G. before that night. They stopped at a gas station for cigars and cigarettes, went to a bootleg house for alcohol, then went to King's house. Appellant testified King had a key to the house, and they all went through the front door. When they went inside, appellant began “rolling up weed.” Appellant, King, and S.R. smoked “blunts” (cigars filled with marijuana), but W.G. did not smoke anything. While in the living room, W.G. and S.R. sat on one couch together, and appellant and King sat on another couch. However, soon after arriving at the house, King and S.R. left to get orange juice. While they were gone, appellant put a movie into a player, and he and W.G. sat together on one couch and watched the movie. King and S.R. returned, made drinks for W.G., then went into King's bedroom. Both King and S.R. went “in and out” of the bedroom all evening. Appellant said the only time he went to King's bedroom was when he was passing the blunt to King, and he only saw King and S.R. talking while they were in King's bedroom. Appellant said he does not drink alcohol, but W.G. drank two or three “little plastic red cups” of alcohol.
        Appellant admitted that when he put his arm around W.G., he was “making an advance on her.” At one point, appellant got up and walked down the hallway to the bathroom. When he came back to the living room, he sat next to W.G. When W.G. asked him where the bathroom was, appellant walked W.G. “halfway down the hall and pointed to where it was.” W.G. went into the bathroom, and appellant went back to the couch. W.G. stayed in the bathroom for about fifteen minutes, then she returned to the living room, sat on the couch, and drank more alcohol. Appellant testified that because he was “high,” he did not remember everything, but he did recall kissing W.G. on the mouth and neck. When W.G. said stop, he stopped. A short time after coming out of the bathroom, W.G. passed out. At some point after that, S.R. came into the living room and woke up W.G. Appellant used King's vehicle to drive the girls back to S.R.'s house.
        During cross-examination, appellant said he did not know W.G. was in high school, but he knew she did not drive, lived with her mother, and that both girls were under the age of twenty-one. Appellant testified he was on parole at the time he picked up S.R. and W.G., and he knew he was not supposed to use drugs while on parole. Appellant said that although he was “as high as you can get” smoking marijuana and could not remember every detail, he did remember that he did not go into a bedroom with W.G. A few weeks after the alleged sexual assault, on December 19, 2008, appellant made an appointment to talk with a detective at his office. Appellant did not show up at the appointed time. On December 23, 2008, the detective made another appointment to meet with appellant on the next day. Appellant did not show up for that appointment either. In January 2009, appellant was arrested. At the jail, a detective showed appellant a picture of W.G. Appellant initially said he had never before seen W.G. After the detective began asking appellant questions, appellant admitted he had seen W.G. before, but stated he “never had sex with W.G.” Appellant told the detective he did nothing more with W.G. than kissing her on the mouth and neck, and that he “tried to have sex with W.G., but she did not want to.” Appellant told the jury that kissing on the neck is “trying to have sex.”
Applicable Law
 
        In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a 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); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). The Texas Court of Criminal Appeals has recently held that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 (“a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution”).
        To obtain a conviction for sexual assault of a child, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the penetration of the female sexual organ or mouth of W.G., a child, by appellant's sexual organ. See Tex. Penal Code Ann. § 22.011(a)(2)(A)-(B) (West Supp. 2010). The testimony of a child victim alone is sufficient to support a conviction. See Tex. Code Crim. Proc. Ann. art. 38.07 (West 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd).
Discussion
 
        Appellant contends the evidence introduced at trial was insufficient to support the jury's verdict because W.G.'s version of events was not credible due to her intoxication from medication and alcohol and the fact that she passed out. Appellant argues that the jury was not rationally justified in finding guilt beyond a reasonable doubt because the only evidence that appellant had sex with W.G. is insufficient. The State responds that the jury was rationally justified in finding guilt beyond a reasonable doubt for appellant's commission of sexual assault of a child.
        Courts give wide latitude to the testimony of child victims of sexual abuse. See Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990) (en banc). The jury heard W.G.'s testimony describing how she awoke from a “black out” to find herself lying naked in a child's bedroom with appellant on top of her having sex with her. See id. The jury also heard S.R.'s and King's testimonies that appellant went into the bedroom with W.G. and they heard noises like “two bodies are colliding” and “[a] smack sound like a hand touching the flesh.” Furthermore, the jury heard appellant's testimony denying W.G.'s allegations. It was the jury's function to resolve any conflicts in the evidence, and the jury was free to accept or reject any and all of the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
        Viewing the evidence under the proper standard, we conclude a rational trier of fact could find beyond a reasonable doubt that appellant caused the penetration of the sexual organ or mouth of a child by his sexual organ. Thus, the evidence is sufficient to support the verdict. See Brooks, 323 S.W.3d at 895; Tear, 74 S.W.3d at 560. We resolve appellant's sole issue against him.
        We affirm the trial court's judgment.
 
 
 
                                                          
                                                          LANA MYERS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47