Wilson, Darrell Vincent v. The State of Texas--Appeal from 230th District Court of Harris County

Affirmed and Opinion filed December 16, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-03-00260-CR

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DARRELL VINCENT WILSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris  County, Texas

Trial Court Cause No. 918,357

O P I N I O N

Appellant, Darrell Vincent Wilson, was convicted by a jury of aggravated sexual assault of a child less than fourteen years of age.[1] The indictment alleged he committed aggravated sexual assault by penetrating the complainant=s mouth with his sexual organ. Appellant was sentenced to thirty-five years= confinement in the Institutional Division of the Texas Department of Criminal Justice and assessed a fine of $5,000. On appeal, he challenges the legal and factual sufficiency of the evidence supporting his conviction. We affirm.

The complainant lived with her father and grandmother in her grandmother=s house. Appellant was the grandmother=s boyfriend, and he also lived in the house. The complainant was nine-years-old at the time of the assault. Periodically, the complainant was left alone with appellant in the house. It was during one of these instances that the assault took place. The complainant testified that appellant Aput his private in my mouth@ while she was watching television in her grandmother=s bedroom. The complainant told a cousin about the assault at the grandmother=s birthday party. The cousin then told her mother, the complainant=s aunt, about the abuse. The aunt notified the Houston Police Department and an investigation was launched. Interviews were conducted by officials from both the Houston Police Department and the Children=s Assessment Center. During an interview with an officer from the police department=s child abuse unit of the claim, the complainant repeated her claim that appellant had put his penis in her mouth.

In evaluating a legal sufficiency challenge, we view 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 n.12 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex.Crim.App.1993). We will not overturn the verdict unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App.1991). The jury, as the trier-of-fact, Ais the sole judge of the credibility of witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App.1999). The jury may believe or disbelieve any portion of the witnesses= testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App.1986). Therefore, if any rational trier-of-fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). Further, we must presume the jury resolved any conflicting inferences on the issue in favor of the prosecution. Farris v. State, 819 S.W.2d 490, 495 (Tex. Crim. App.1990), overruled on other grounds by Riley v. State, 889 S.W.2d 290 (Tex. Crim. App.1993). We test the evidence only to see if any reasonable trier-of-fact could find the elements were established beyond a reasonable doubt. Jackson, 443 U.S. at 318.

When reviewing claims of factual insufficiency, it is our duty to examine the fact-finder=s weighing of the evidence. Clewis, 922 S.W.2d at 133, 134. There are two ways in which evidence can be factually insufficient: (1) the evidence is so weak as to be clearly wrong or manifestly unjust, or (2) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Zulianiv. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003). Determining which standard applies depends upon whether the complaining party had the burden of proof at trial. Id. If the complaining party did not have the burden of proof, then the Amanifestly unjust@ standard applies. Id. On the other hand, if the complaining party had the burden of proof, then the Aagainst the great weight and preponderance@ standard applies. Id. Under the Texas Court of Criminal Appeals= modified approach, if the defendant challenges the factual sufficiency of the elements of the offense, even though the State had the burden of proof, we must review the evidence using both standards. Id. Thus, when reviewing factual sufficiency challenges, we must determine Awhether a neutral review of all of the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@ Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

Appellant asserts the same grounds in challenging both the legal and factual sufficiency of the jury=s verdictCa variance in the complainant=s testimony, the apparent disregard of his witnesses= testimony, and the lack of any physical evidence. Appellant contrasts complainant=s testimony at trial with the information that the complainant relayed to the Children=s Assessment Center=s investigator. Namely, the complainant testified in trial that appellant had penetrated her mouth. Alternatively, Lisa Holcombe of the Children=s Assessment Center testified the complainant previously told her that appellant had not penetrated her mouth. Nevertheless, the record also reflects the testimony of Officer Julie Anderson of the Houston Police Department=s child abuse unit. Officer Anderson testified the complainant told her that appellant placed his sex organ in her mouth. Appellant next points to the apparent disregard of his witnesses= testimony. Namely, appellant offered the testimony of several witnesses who had observed the complainant and appellant interact. Generally, the witnesses testified that they had never seen appellant behave inappropriately with the complainant. One witness even testified that she believed the complainant was a liar. Finally, he complains that the prosecution offered no physical evidence; however, the examining physician testified that there would be no physical evidence of penetration of the complainant=s mouth.[2]

First, we address legal sufficiency. Viewing the evidence in the light most favorable to the prosecution, we believe a rational jury was entitled to conclude appellant committed a sexual assault of the complainant. Accordingly, we find the evidence legally sufficient to support the jury=s verdict, and appellant=s first issue is overruled.

With respect to factual sufficiency, appellant cites the aforementioned instances to show that he did not assault the complainant. The jury, however, is the sole judge of the facts, the credibility of witnesses, and the weight to be given the evidence. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000); Beckham v. State, 29 S.W.3d 148, 152 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Therefore, the jury may believe or disbelieve all or part of any witness=s testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1995). Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury. Heiselbetzv. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995).

The jury was entitled to determine the weight to be given the evidence and the credibility of the witnesses and whether to believe the testimony of any witness. By its verdict, the jury apparently chose to believe the complainant=s version of the events, not the appellant=s. Viewing the evidence without the prism of in the light most favorable to the prosecution, we find the evidence factually sufficient to support the verdict. Appellant=s second issue is overruled.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed December 16, 2003.

Panel consists of Justices Yates, Hudson, and Fowler.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Two indictments were returned against appellant and the causes were consolidated in a single trial. Under cause number 918,356, the jury was permitted to convict appellant of aggravated sexual assault should they find he intentionally or knowingly penetrated complainant=s vagina with his sex organ. The jury found appellant not guilty on this cause. The remaining cause number, 918,357, is the subject of appellant=s appeal.

[2] Of special note here is appellant=s claim that the lack of physical evidence makes the evidence factually insufficient to support his conviction. The Court of Criminal Appeals has held that the testimony of a victim, standing alone, is sufficient evidence of penetration. Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App.1978).