Opinion
No. 09-08-00505-CR
Submitted on August 24, 2009.
Opinion Delivered August 26, 2009. DO NOT PUBLISH.
On Appeal from the 258th District Court Polk County, Texas, Trial Cause No. 19,687.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
John Earnest Collier, Jr. appeals his conviction for aggravated sexual assault. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(I), (2)(B) (Vernon Supp. 2008). After Collier pled true to three enhancement allegations, the trial court imposed a twenty-five year sentence as punishment for the offense. See Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2008). The sole issue on appeal challenges the legal sufficiency of the evidence to support the conviction. We affirm the judgment of the trial court. In reviewing a claim that evidence is legally insufficient to support the judgment, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In this case, Collier contends no rational trier of fact could have convicted him because only the child witnessed the incident, the child did not make an outcry for three days, and defense witnesses testified that Collier was not alone with the child on the date he was alleged to have committed the offense. When an indictment alleges that a crime occurred "on or about" a certain date, the State may prove an offense "with a date other than the one specifically alleged so long as the date is anterior to the presentment of the indictment and within the statutory limitation period and the offense relied upon otherwise meets the description of the offense contained in the indictment." Yzaguirre v. State, 957 S.W.2d 38, 39 (Tex. Crim. App. 1997). In this case, the indictment was filed on September 21, 2007, and alleged the offense occurred on or about May 3, 2007, when the victim was nine years of age. Thus, the conviction may be sustained upon proof beyond a reasonable doubt that Collier sexually assaulted the child in the manner alleged in the indictment on any date before September 21, 2007. See Act of May 30, 2005, 79th Leg., R.S., ch. 1162, § 6, 2005 Tex. Gen. Laws 3802, 3806-07; see also Tex. Code Crim. Proc. Ann. art. 12.01(1)(B) (Vernon Supp. 2008). The victim's family lived in a trailer on some acreage shared with trailers occupied by Collier's immediate family and by Collier's parents. The victim's mother testified that on May 6, 2007, the victim told her mother that "Uncle John raped me." Referring to the outcry of the assault, the child's mother testified that the child "told me it was like three days before that." She was not absolutely certain what day it would have been. The victim's parents took the child to the hospital emergency room, where she was examined and released, then returned home, packed their belongings and left the premises. On May 9, 2007, the child was examined by a sexual assault nurse examiner. A colposcopic examination revealed an abrasion and a laceration that were "concerning for abuse or trauma." The injury was recent, within a week or ten days, and was in a position consistent with the acts reported by the child. The nurse examiner could not say that a sexual assault had definitely occurred. The child reported to the nurse examiner conduct by "Uncle John" that is consistent with the allegations in the indictment. "Uncle John" is Collier. The child told the nurse examiner that the assault occurred in Collier's living room, just when she got home from school. The child testified that Collier was babysitting the child and her siblings while her mother went to the store with Collier's wife. After playing outside, the child walked into the home where Collier was playing a video game. Collier ordered the child to pull down her pants. Thinking that she was going to get a "whipping," the child complied. The child testified that Collier sexually assaulted her in the manner described in the indictment. A few days later, she was staying overnight at a friend's house, became frightened, woke the friend and told her what had happened. On cross-examination, the child testified that the assault occurred on a school day, that Collier was already home when she got home from school, the women left for Wal-Mart right after the child got home, and her grandfather was outside at the time. A friend of Collier's wife testified that they worked a shrimp boil together in Houston on May 3, 2007, from noon until midnight. Collier's wife claimed she was cooking for a shrimp boil the previous week and was gone all day the first three days of May. She also testified that the child and her parents left the premises on May 3 and never returned. She denied having gone to Wal-Mart with the child's mother on May 3. She also claimed it was raining that day. According to her, Collier never arrives home from work before the children return from school. Collier's father testified that "[t]he day that it was supposed to happen" Collier arrived home from work 10 or 15 minutes late. He testified that the child's mother did not go to the store that day and that her car was there all day. He denied being outside while Collier was inside with the child. On cross-examination, he admitted there were times when the child's parents ran errands and left the children with their relatives. He testified that it was raining that day and that it was unusual for the child's mother to stay home all day. Collier's employer testified that Collier was with him on May 3, 2007, at 3:40 p.m. and that his records show Collier did not leave work until 3:50 p.m. Collier would not have arrived home before 4:00. On appeal, Collier argues that the evidence is legally insufficient to support the jury's verdict. He argues that the medical evidence was not conclusive of sexual assault and he argues that he established an alibi for the date the assault was supposed to have occurred. "The jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence." Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Here, the child and her mother testified that the child was alone with Collier on May 3, 2007, or around that date, while the women went to the store. Other witnesses testified that on May 3 Collier worked a few minutes later than usual and that Collier's wife was not available to go to the store on that particular day. In weighing the conflicting evidence regarding Collier's access to the child, the jury could either disbelieve the alibi witnesses or reconcile the conflicts in their testimony by determining that the offense occurred but did not occur on May 3, 2007. Although there were no eyewitnesses to support the child's testimony and the medical evidence did not provide conclusive evidence of a sexual assault, a conviction for sexual assault may be supported by the uncorroborated testimony of a child victim. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005). In this case, the jury could rationally find beyond a reasonable doubt that the defendant committed the offense alleged in the indictment. We overrule the issue presented on appeal and affirm the judgment. AFFIRMED.