Opinion
No. 13-05-175-CR
February 22, 2007.
On appeal from the 36th District Court of Aransas County, Texas.
Before: Chief Justice VALDEZ and Justices YAÑEZ and VELA.
MEMORANDUM OPINION
Appellant, Luis Garcia, appeals his conviction for aggravated sexual assault of a child and indecency with a child. After finding appellant guilty, the jury assessed his punishment at twenty-five years' confinement, and the trial court sentenced him accordingly. In three issues, appellant asserts that the evidence is legally and factually insufficient to support his conviction and that the convictions constitute a violation of the Double Jeopardy Clause of the United States Constitution. We affirm.
See TEX. PEN. CODE ANN. §§ 22.021, 21.11 (Vernon 2006).
As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to explain the Court's decision and the basic reasons for it.
See TEX. R. APP. P. 47.4.
LEGAL AND FACTUAL SUFFICIENCY
In his first and second issues, appellant contends that the evidence is legally and factually insufficient to support his conviction.
1. Standards of Review
In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. We will set the verdict aside only if: (1) the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the fact-finder's determination is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. We cannot conclude a conviction is "clearly wrong" or "manifestly unjust" simply because we would have voted to acquit. In other words, we may not simply substitute our judgment for the fact-finder's. To reverse for factual sufficiency, we must determine, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. In examining a factual sufficiency challenge, we defer to the fact-finder's determination of the credibility of the evidence.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hampton v. State, 165 S.W.3d 691, 693 (Tex.Crim.App. 2005).
Watson v. State, 204 S.W.3d 404, 2006 WL 2956272, at *8 (Tex.Crim.App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App. 2005).
Watson, 204 S.W.3d 404, 2006 WL 2956272, at *8, *10; Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000).
Watson, 204 S.W.3d 404, 2006 WL 2956272, at *8.
Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).
Watson, 204 S.W.3d 404, 2006 WL 2956272, at *10.
Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003).
2. Applicable Law
Appellant was convicted of committing the offenses of indecency with a child and aggravated sexual assault against his daughter, D.G. The indecency offense required proof of the following facts: (1) appellant engaged in sexual contact with D.G. by touching D.G.'s anus, (2) with the intent to arouse or gratify appellant's sexual desire, and (3) D.G. was a child younger than seventeen years and not appellant's spouse. The aggravated sexual assault offense required proof of the following facts: (1) appellant intentionally or knowingly, (2) caused D.G.'s anus to contact appellant's sexual organ, and (3) D.G. was a child under fourteen years old and not appellant's spouse.
See TEX. PENAL CODE ANN. § 21.11.
See id. § 22.021.
3. Discussion
The testimony of a child complainant, in and of itself, is enough to support a conviction for sexual offenses under code of criminal procedure section 22.021, the aggravated sexual assault statute. Moreover, the jury is the sole judge of the credibility of the witnesses and the weight to be given the evidence and may choose to believe all, some, or none of it. In his brief, appellant asserts that the State's evidence was primarily based on the direct and hearsay testimony of D.G., "an immature, eight-year-old child." We note, however, that reconciliation of evidentiary conflicts is a function solely within the province of the jury.
TEX. CODE CRIM. PROC. ANN. art. 38.07(a), (b)(1) (Vernon 2005); Perez v. State, 113 S.W.3d 819, 838 (Tex.App.-Austin 2003, pet. ref'd) (holding that evidence was factually sufficient where the child victim testified to indecency crime in spite of defense claims that the child lacked credibility).
TEX. CODE CRIM. PROC. ANN. art. 38.04 (Vernon 2005); Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000).
Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App. 1986).
On direct-examination, D.G. testified that appellant had hurt her "butt" through the use of his "private" and "fingers." D.G. answered affirmatively when asked if appellant's "private part" had penetrated her. On cross-examination, D.G. testified that these assaults occurred both during the day and at night. D.G.'s mother, testified that D.G. told her that appellant had touched her butt with his hand and penis "`a lot of times but not that much.'" Finally, Carol McLaughlin, a sexual assault nurse examiner employed by Driscoll Children's Hospital, testified that D.G. stated the following to her: "`I've been touched with some fingers and my daddy — my dad's private part. My daddy did it. He touched me in my butt.'"
We hold that the evidence, when viewed in the light most favorable to the verdict, supports a determination beyond a reasonable doubt that appellant committed the offenses of aggravated sexual assault and indecency with a child; therefore, we overrule appellant's first issue. Additionally, when viewed neutrally, the evidence is not so obviously weak or so greatly outweighed by contrary proof that it would not support the finding of guilty beyond a reasonable doubt. Accordingly, we overrule appellant's second issue.
DOUBLE JEOPARDY
In his third issue, appellant complains that the trial court violated his double jeopardy rights by convicting him of both aggravated sexual assault of a child by causing D.G.'s anus to contact his sexual organ, and indecency with a child by touching D.G.'s anus. We disagree.
Assuming, without deciding, that appellant preserved his double jeopardy claim, we nonetheless hold the record contains evidence from which the jury could conclude that appellant's conduct in causing D.G.'s anus to contact his penis was separate and distinct from his conduct in touching D.G.'s anus.
Although the indictment alleges that both offenses occurred "on or about a date in April, 2004," the State was not required to prove either offense occurred on the specific date alleged. The "on or about" language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment or return of the indictment and within the statutory limitation period. Therefore, as long as the record demonstrates appellant committed two distinct acts of (1) causing D.G's anus to contact his sexual organ and (2) touching D.G.'s anus to arouse or gratify appellant's sexual desire, appellant's convictions for both aggravated sexual assault and indecency with a child cannot constitute a double jeopardy violation in this case.
Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App. 1997).
See generally Murray v. State, 24 S.W.3d 881, 889 (Tex.App.-Waco 2000, pet. ref'd) (holding the defendant's double jeopardy rights were not violated by his punishment for both aggravated sexual assault and indecency with a child because the evidence at trial showed the defendant "committed two separate acts — penetrating the victim's sexual organ with his finger and touching her genitals with his tongue — that constituted two separate offenses.").
Evidence presented at trial revealed that appellant committed, no earlier than February 2004, at least two distinct acts that constitute either one of the two charged offenses. As stated earlier, D.G. testified that appellant abused her both during the day and at night, thus indicating that more than one act of abuse took place. Furthermore, D.G.'s mother testified that D.G. described the abuse as happening "a lot of times but not that much." We believe this testimony demonstrates that appellant committed at least two separate and distinct offenses against D.G.; therefore, we hold the jury could convict appellant for both aggravated sexual assault and indecency with a child without infringing upon appellant's rights against double jeopardy. Appellant's third issue is overruled.
Appellant's acts occurred before the presentment or return of the indictment and within the statutory limitation period. See TEX. CODE CRIM. PROC. ANN. art. 12.01 (Vernon 2005).
CONCLUSION
Having overruled each of appellant's three issues, we affirm the trial court's judgment.