Opinion
No. 2-05-449-CR
Delivered: January 10, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b)
Appeal from Criminal District Court No. 1 of Tarrant County.
PANEL F: CAYCE, C.J.; GARDNER and WALKER, JJ.
MEMORANDUM OPINION
See TEX. R. APP. P. 47.4.
Michael Allen Powell appeals from his conviction for aggravated sexual assault of a child under fourteen years of age. In two points, appellant challenges the legal and factual sufficiency of the evidence to support the jury's guilty verdict on one of the two counts of which he was convicted. We affirm. The facts of this case are well known to the parties, and the law is well settled. The indictment alleged that appellant "intentionally or knowingly cause[d] the penetration of the female sexual organ of [S.P.], a child younger than 14 years of age . . . by inserting his finger or hand in the female sexual organ of [S.P.]." At trial, S.P. testified regarding penetration as follows:
Q. Did he ever touch you anywhere else, on your female sexual organ for instance?
A. Yes.
. . . .
Q. And where did you get touched then, other than your bottom? Like you said before, your anus?
A. My chest and my private area.
Q. Your female sexual organ?
A. Yeah.
. . . .
Q. Now, was — did you know then what was touching your female sexual organ?
A. His hand.
Q. Now, did his hand or finger go inside?
A. I'm — maybe once but I don't — not like that it hurt, no.Dr. Jayme Coffman, who examined S.P., testified as follows:
She [S.P.] said that it had been about five years prior; that it was her dad; that he touched her on her front private and that her panties were pulled down sometimes — oh, that they were pulled down and sometimes it was — well, she said lips — between the labia and sometimes it was outside the labia. She also said he put things in her bottom, but she didn't know what it was because she never saw it. She just said it was something hard and it hurt. But she didn't know if there was any bleeding from that.
. . . .
I asked specifically if anything else touched her private, if his private touched her private. She said, no. She denied any other kind of objects touching her privates.
Q. Other than?
A. Other than his hand.
. . . .
A. . . . [S]he said it was between the labia, so it's penetration of the genitalia but not specifically penetration of the vagina. . . . Penetration of the female sexual organ includes the kind of touching between the labia testified about in this case.Appellant argues that the evidence is insufficient because S.P. said only that penetration "maybe" occurred. S.P.'s testimony is not the only evidence of penetration, however; Dr. Coffman testified unequivocally that S.P. reported that appellant had put his hand "between the labia." Further, considering S.P.'s testimony in context, the jury reasonably could have inferred that S.P. simply meant that appellant's finger did not hurt her like the object that he inserted into her anus did. For these reasons, applying the appropriate standards of review, we hold that the evidence is legally and factually sufficient to support appellant's conviction. Therefore, we overrule appellant's points and affirm the trial court's judgment.
Appellant does not challenge the sufficiency of the evidence to support his conviction for the other count.
See Vernon v. State, 841 S.W.2d 407, 408-10 (Tex.Crim.App. 1992); Murphy v. State, 4 S.W.3d 926, 929 (Tex.App.-Waco 1999, pet. ref'd); Rodda v. State, 926 S.W.2d 375, 377-78 (Tex.App.-Fort Worth 1996, pet. ref'd).
See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007) (both setting out legal sufficiency standard of review); Watson v. State, 204 S.W.3d 404, 414-15, 417 (Tex.Crim.App. 2006) (setting out factual sufficiency standard).