In the Matter of A.M.B.--Appeal from 289th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-07-00005-CV
IN THE MATTER OF A.M.B.
From the 289th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-JUV-01537
Honorable Carmen Kelsey, Judge Presiding

Opinion by: Catherine Stone, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: November 7, 2007

 

AFFIRMED

A jury determined that A.M.B. engaged in delinquent conduct by committing aggravated sexual assault of a child. The trial court ordered A.M.B. committed to the Texas Youth Commission. On appeal, A.M.B. contends the evidence is legally and factually insufficient to support his adjudication. We affirm the judgment of the trial court.

Background

This case involves a fourteen-year-old male's conduct with his four-year-old half-sister. The defendant, A.M.B., and the complainant share the same father. A.M.B. lived in a house with his parents, aunt, and grandparents. He slept in a waterbed with his forty-four-year-old aunt. When the complainant would visit, she would sleep in the waterbed with A.M.B. and his aunt. After his aunt was asleep, A.M.B. would sexually assault the complainant.

After several months, A.M.B. moved with his parents to a new house. Shortly after the move, the complainant was visiting A.M.B. when he sexually assaulted her again. After this visit, the complainant told her caretaker about the sexual assaults. The complainant claimed she tried to tell A.M.B.'s aunt and her father about the assaults but to no avail. The complainant's mother took her to the hospital and reported the incident to the police. A.M.B. was charged with three counts of aggravated sexual assault of a child, and a jury found he engaged in delinquent conduct as to Counts II and III of the complaint.

Standard of Review

The standard of review for a sufficiency challenge in a juvenile case is the same as that in a criminal case. In re P.L.W., 851 S.W.2d 383, 387 (Tex. App.--San Antonio 1993, no writ). We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the prosecution to 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). We review the factual sufficiency of the evidence by considering all of the evidence in a neutral light and reversing only if: (1) the evidence is so weak as to make the verdict clearly wrong or manifestly unjust, or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)); In the Matter of J.D.P., 85 S.W.3d 420, 422 (Tex. App.--Fort Worth 2002, no pet.). Although we analyze all of the evidence presented at trial, the jury is the sole judge of the facts, the credibility of the witnesses, and the weight given to their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). We may not substitute our own judgment for that of the jury. Johnson, 23 S.W.3d at 12.

Analysis

A.M.B. contends the evidence is legally and factually insufficient to support the jury's finding of aggravated sexual assault of a child. A person commits aggravated sexual assault of a child if he intentionally or knowingly causes the mouth, anus, or sexual organ of a child younger than 14 years of age to penetrate or contact the sexual organ of the actor. Tex. Penal Code. Ann. 22.021 (Vernon Supp. 2007). Relying on the same arguments for his legal insufficiency claim as his factual insufficiency claim, A.M.B. argues that the State's key witness, the five-year-old complainant, disproved the possibility of a sexual assault through her testimony describing the attacks and A.M.B.'s penis. A.M.B. further asserts the State failed to present medical evidence that the complainant was sexually assaulted.

A.M.B. first argues the sexual assaults were a physical impossibility. The complainant testified that she was on her back or stomach and A.M.B. was on his side during the attacks. A.M.B. claims that this position precludes the possibility that A.M.B.'s penis could have contacted her vagina or anus. However, the complainant also testified that A.M.B. would get close to her; "grab [her] by the side and . . . turn [her] over"; and move her legs apart. The jury is the exclusive judge of the credibility of witnesses and the portions of their testimony to believe. Sharp, 707 S.W.2d at 614. Based on this evidence, the jury could have believed that the physical positioning allowed the assaults to occur.

A.M.B. next contends that because the assaults occurred on a waterbed while an adult slept next to the children, there was not the "requisite contact required by the statute for a sexual assault to have occurred." The statute requires only that A.M.B.'s penis come in contact with the complainant's vagina or anus. Tex. Penal Code. Ann. 22.021 (Vernon Supp. 2007). The testimony that the waterbed creates waves and the aunt is a light sleeper goes to the probative value of the evidence. The jury alone determines the probative value of specific evidence, and the appellate court may not second guess that determination. Fernandez v. State, 805 S.W.2d 451, 456 (Tex. Crim. App. 1991). Given the complainant's detailed testimony regarding what occurred in the bed after everyone was asleep and her attempts to wake the aunt, the jury could have believed that it was possible for A.M.B. to contact the complainant without waking the aunt.

A.M.B. further asserts that the evidence is insufficient because the State did not introduce medical proof that the complainant was sexually assaulted. Although the complainant was taken to the hospital by her mother when she learned of the attacks, the visit was eight days after the last attack; the examining doctor did not perform a culture but noted the area was irritated; and a medical doctor, specializing in sexual abuse, testified that children's sexual abuse injuries often heal within a week to ten days. The complainant's mother testified that, during the period of the attacks, her daughter complained of and was examined for vaginal irritation and burning and vaginal discharge. A.M.B.'s aunt also testified that she had noticed discharge on the complainant's underwear.

The jury is the sole arbiter of the credibility of witnesses and the weight to be given their testimony. Sharp, 707 S.W.2d at 614. Reconciliation of conflicts in the evidence is within the sole discretion of the jury. Id. Moreover, the testimony of a child victim alone may be sufficient to support a sexual assault conviction. Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.--San Antonio 1994, pet. ref'd). In this case, the jury determined that the State's evidence was sufficiently credible, even in the absence of conclusive medical proof, to convict A.M.B. of contacting or penetrating the complainant's vagina and anus.

Finally, A.M.B. claims that the complainant's testimony describing A.M.B.'s penis as resembling a "french fry" proves the complainant has never seen a penis. This claim goes to the credibility of the witness. The jury decides whether a witness is credible and the weight to be accorded her testimony. Sharp, 707 S.W.2d at 614. We give deference to a jury's credibility determination because the jury observes and evaluates the witness's demeanor and delivery during trial. Stogiera v. State, 191 S.W.3d 194, 196 (Tex. App.--San Antonio 2005, no pet.); see also Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997).

Borrowing a factor we use to evaluate the reliability of a complainant's outcry testimony, the complainant consistently described A.M.B.'s penis using her own terminology. See Davidson v. State, 80 S.W.3d 132, 139 (Tex. App.--Texarkana 2002, pet. ref'd) (listing one factor for determining outcry reliability as: whether the child made the statement spontaneously in her own terminology or whether evidence exists of prior coaching by adults). The complainant's caretaker testified that the complainant described A.M.B.'s penis as his "privates" during her outcry. The complainant later referred to A.M.B.'s penis as resembling a "french fry" when she talked to the police. She also referred to A.M.B.'s penis as his "little thing" and properly identified it on an anatomically correct male doll during trial. Given that the complainant was five years old at the time of trial and was three and four years old when the attacks occurred, the jury could have determined that her testimony was sufficiently credible in view of her "frame of reference."

Viewing the evidence neutrally, as we must do for a factual sufficiency review, it is not so weak as to make the verdict clearly wrong or manifestly unjust, and the verdict is not against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 414-15. The complainant consistently identified A.M.B. as the person who assaulted her, despite A.M.B.'s denial of the assaults. Further, the complainant's delay in making her outcry was explained by Dr. Kellogg as common among child victims. The complainant testified that she did not tell anyone sooner about the assaults because A.M.B. told her not to, and because she was afraid to get him in trouble. Finally, testimony that the aunt was a light sleeper and would have awakened had the assaults taken place was countered by the complainant's testimony that she in fact attempted, with no success, to awaken the aunt. The jury was free to resolve any inconsistencies in the witnesses' testimony. The jury could have reasonably chosen to believe the State's evidence and disbelieve A.M.B.'s evidence. See id. at 415. The evidence is legally and factually sufficient to support the jury's findings and adjudication.

Conclusion

The trial court's judgment is affirmed.

Catherine Stone, Justice