Opinion
No. 10-06-00134-CR
Opinion delivered and filed July 11, 2007. DO NOT PUBLISH.
Appeal from the 40th District Court Ellis County, Texas, Trial Court No. 2988CR/A.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
A jury convicted Herbert Lavonne Wiggins of aggravated sexual assault of a child and assessed his punishment at life imprisonment. Wiggins contends in his sole point that the evidence is legally insufficient to support his conviction. We will affirm. The evidence against Wiggins consists primarily of testimony from the complainant C.P., her grandmother (outcry testimony), and a sexual assault nurse examiner. C.P., who was seven at the time of trial, testified that Wiggins had placed his finger inside her panties and touched her vagina. She said that it hurt when he did this. It happened two or three days in a row. Wiggins told her not to tell anyone. C.P.'s grandmother testified that C.P. was staying in her home until the end of the school year even though her parents had moved to a home in another community in the area earlier that year. C.P. told her grandmother one morning that Wiggins had touched her vagina and demonstrated that he did so moving his hand back and forth. The grandmother called C.P.'s mother and then they called the police. The sexual assault nurse examiner testified that C.P. told her that "Herbert" placed his finger inside her vagina. It hurt sometimes but did not cause any bleeding. When reviewing a legal insufficiency complaint, we consider all the evidence in the record and ask "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." Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App. 2004) (quoting Jackson v. Va., 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). To support his position, Wiggins refers to the lack of physical evidence, inconsistencies in some aspects of C.P.'s testimony, and the testimony of several defense witnesses (as well as Wiggins himself) who essentially testified either that the sexual assaults could not have happened or did not happen. By viewing the evidence in this manner, however, Wiggins is not "viewing the evidence in the light most favorable to the prosecution." See id. Instead, when viewed in the light most favorable to the prosecution, the lack of physical evidence is consistent with the nurse's testimony that there is often no physical evidence in this type of case. The inconsistencies in C.P.'s testimony are easily explained by her young age and the stress of testifying. And a rational trier of fact may well have determined that the testimony of the defense witnesses was not credible. See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006) (when reviewing legal insufficiency complaint, appellate court must "defer to the jury's credibility and weight determinations"). When viewed in the light most favorable to the prosecution, the combined testimony of C.P., her grandmother, and the nurse constitute legally sufficient evidence to support the conviction. See Ozuna v. State, 199 S.W.3d 601, 606-09 (Tex.App.-Corpus Christi 2006, no pet.); Carty v. State, 178 S.W.3d 297, 303 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd); Mosley v. State, 141 S.W.3d 816, 821-23 (Tex.App.-Texarkana 2004, pet. ref'd). Accordingly, we overrule Wiggins's sole point and affirm the judgment.