Opinion
No. 05-05-00141-CR
Opinion issued January 4, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-50225-US. Affirmed.
Before Justices WHITTINGTON, WRIGHT, and MAZZANT.
OPINION
Alvin Wayne Kelley appeals his conviction for aggravated sexual assault of a child under fourteen years of age. See Tex. Pen. Code Ann. §§ 22.021(a)(1)(B)(i) (a)(2)(B) (Vernon Supp. 2005). After finding appellant guilty, the jury assessed punishment, enhanced by two prior felony convictions, at thirty-three years' confinement. In three issues, appellant claims the evidence is legally and factually insufficient to support his conviction and that the evidence was sufficient to permit a jury to rationally find him guilty only of the lesser-included offense of indecency with a child. We affirm the trial court's judgment. We apply well-known standards when reviewing challenges to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001), cert. denied, 537 U.S. 1195 (2003). Viewing the evidence in the light most favorable to the verdict, we determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Russeau v. State, 171 S.W.3d 871, 877 (Tex, Crim. App. 2005); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); see also Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App. 2000) (reconciliation of conflicts in evidence is within exclusive province of jury and jury may choose to believe some testimony and disbelieve other testimony). In a factual sufficiency review, we view all the evidence in a neutral light and set the verdict aside only if (i) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (ii) the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)), cert. denied, 125 S. Ct. 1697 (2005). The question under a factual sufficiency challenge is whether, considering all the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. In examining a factual sufficiency challenge, we also defer to the fact finder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003); see Martinez v. State, 129 S.W.3d 101, 106 (Tex.Crim.App. 2004) ("Although a reviewing court is authorized to disagree with the jury's determination, due deference must be given to the fact finder's determinations concerning the weight and credibility of the evidence and reversal of the fact finder's determination is appropriate only to prevent the occurrence of a manifest injustice."). A person commits the offense of aggravated sexual assault if he intentionally or knowingly causes the penetration of the sexual organ of a child by any means and the child is younger than fourteen years of age. Tex. Pen. Code Ann. §§ 22.021(a)(1)(B)(i) (a)(2)(B). Testimony of a sexual assault victim is alone sufficient to prove an assault. Empty v. State, 972 S.W.2d 194, 196 (Tex.App.-Dallas 1998, pet. ref'd); Karnes v. State, 873 S.W.2d 92, 96 (Tex.App.-Dallas 1994, no pet.); see Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005) (requirement that victim inform another person of alleged sexual offense does not apply if victim was seventeen years or younger at time of alleged offense); see also Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App. [Panel Op.] 1978) (victim's testimony, standing alone, is sufficient evidence of penetration). Although appellant claims the evidence is legally and factually insufficient to support his conviction because the complainant's testimony was "inconsistent, unreliable, and unbelievable," we cannot agree. T.R., the complainant in this case, testified that, at the time of trial, she was seven years old and in the first grade. T.R. had several friends that lived in the same apartment complex she did. One friend, Nora, was twelve years old. Nora lived with her mother, Norma, and appellant. T.R. testified that her mom and dad gave her hugs and kisses and that was okay, but that it was not okay for someone to touch her private. She then testified that, when she was six years old, appellant touched her private. According to T.R., appellant told her to lie on the bed. He knelt next to her and put his hand underneath her clothes. T.R. was on her back. Appellant put his fingers inside her and moved them. When she went back home, her mother told her to take a bath. Taking a bath made her private sting so she told her mother what had happened with appellant. Her mother got really mad and called a neighbor. The neighbor called the police. T.R. also testified that a twelve-year-old boy named Dalvin pushed her down and put his private part in her private part. She testified that Dalvin and appellant are not the same people and that the two events both occurred when she was six years old. She told her mother after each incident. T.R. also testified that appellant asked her if she "wanted to do it with him" but she did not know what he meant. On cross-examination, T.R. testified appellant touched her inside her private and that it happened one time. T.R.'s testimony alone is legally sufficient to support appellant's conviction for intentionally or knowingly causing the penetration of T.R.'s sexual organ with his finger. See Tear v. State, 74 S.W.3d 555, 561 (Tex.App.-Dallas 2002, pet. ref'd), cert. denied, 538 U.S. 963 (2003); Empty, 972 S.W.2d at 196. Regarding the factual sufficiency of the evidence, the jury was the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony. A jury decision is not manifestly unjust simply because the jury resolved evidence against appellant. 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 by intentionally or knowingly causing the penetration of T.R.'s sexual organ with his finger. See Tex. Pen. Code Ann. §§ 22.021(a)(1)(B)(i) (a)(2)(B). Thus, the State's evidence was not too weak to support this finding of guilt beyond a reasonable doubt. Furthermore, contrary evidence, strong enough that the beyond-a-reasonable-doubt standard could not have been met, does not exist. We therefore conclude the evidence is legally and factually sufficient to support appellant's conviction for aggravated sexual assault of a child younger than fourteen years of age. Having reached this conclusion, we need not address appellant's third argument-that the evidence is legally sufficient to support a conviction for a lesser-included offense-because it is predicated on a finding that the evidence is legally and factually insufficient to support his conviction of the greater offense. We affirm the trial court's judgment.