Opinion
No. 05-05-00135-CR
Opinion issued January 11, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-71254-JR. Affirmed.
Before Justices WHITTINGTON, WRIGHT, and MAZZANT.
MEMORANDUM OPINION
Miguel Angel Guerrero appeals his conviction for aggravated sexual assault of a child. After the jury found appellant guilty, it assessed punishment at fifteen years' confinement and a $10,000 fine. In two issues, appellant contends the evidence is factually insufficient to support his conviction and the prosecutor engaged in misconduct. We overrule appellant's issues and affirm the trial court's judgment. In his first issue, appellant contends that the evidence is factually insufficient to support the jury's verdict of guilt. When reviewing the factual sufficiency of the evidence, we review all of the evidence in a neutral light and will reverse only if the evidence supporting the verdict is too weak to support a finding of guilt beyond a reasonable doubt, or if the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 483-84 (Tex.Crim.App. 2004). The jury is the sole judge of the credibility of the witnesses and we afford great deference to the jury's findings on that issue. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1997). To support appellant's conviction, the State was required to show that appellant intentionally or knowingly penetrated A.L.'s sexual organ with his sexual organ, and at the time of the offense, A.L. was younger than fourteen years old. See Tex. Penal Code §§ 22.021(a)(1)(A)(i) (a)(2)(B) (Vernon Supp. 2005). After reviewing the record under the above standard, we conclude the State met its burden. A.L., who was five-years-old at the time of trial, testified that appellant is her brother's father. A.L. indicated three areas on an anatomical chart where she said appellant had touched her: her mouth, her vaginal area, and her anal area. According to A.L., appellant touched those areas with his "thing," which she identified on an anatomical chart as a penis. A.L., using her finger and a Kleenex box, demonstrated that appellant penetrated her vagina with his penis. This alone is sufficient to support the jury's verdict of guilt. See Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). In addition to A.L.'s testimony, the State presented evidence that Kristy Lawton knew A.L. because she attended the daycare center where Lawton worked. Lawton had observed several things about A.L. that caused her concern, including "brown stains" that appeared to be discharge, not fecal matter, on her underwear, and that A.L. "walked like [her vaginal area] was hurting all the time." Sonai Delira, who also worked at the daycare center A.L. attended, testified that A.L. frequently complained of irritation and difficulty urinating. She also noticed that A.L. often had brownish stains in her panties. Nancy McNeil, a pediatric nurse practitioner at Children's Medical Center, testified she performed a sexual abuse exam on A.L. She noticed that although A.L.'s hymen was within a normal range, it was "skimpy," and was thinner than McNeil would have expected for a child A.L.'s age. The tissue was also more lax than she would have expected. McNeil explained she characterized A.L.'s exam as "concerning" because the depth of her hymen and the laxity of the tissue would be consistent with a child that had been penetrated by a penis. Appellant maintains this evidence is factually insufficient to support his conviction because neither A.L.'s mother nor the interviewer from the Children's Advocacy Center testified; A.L.'s testimony was inconsistent; and A.L. was unable to provide a specific date and time of the offense. However, the jury was the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony and we may not substitute our own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002). It is clear from the jury's verdict that it found A.L. credible and we find no reason to disturb the jury's finding. See id. After reviewing all of the evidence in a neutral light and giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we conclude the jury was rationally justified in finding appellant committed aggravated sexual assault. The State's evidence was not too weak to support the finding of guilt beyond a reasonable doubt. Further, contrary evidence, strong enough that the beyond-a-reasonable-doubt standard could not have been met, does not exist in this case. Having reviewed all of the evidence under the proper standard, we conclude it is sufficient to support appellant's conviction. We overrule appellant's first issue. In his second issue, appellant contends the State engaged in prosecutorial misconduct by repeatedly bringing up an objectionable matter, thereby effectively circumventing the trial court's hearsay rulings. The proper method of preserving error in cases of prosecutorial misconduct is to (1) object on specific grounds, (2) request an instruction that the jury disregard the comment, and (3) move for a mistrial. Penry v. State, 903 S.W.2d 715, 764 (Tex.Crim.App. 1995); Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App. 1993). Although appellant made several hearsay objections which were sustained by the trial court, appellant did not object on the basis of prosecutorial misconduct in the trial court. Consequently, appellant has failed to preserve error for our review. See Hajjar v. State, 176 S.W.3d 554 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). We overrule appellant's second issue. Accordingly, we affirm the trial court's judgment.