No. 01-07-00825-CR
November 6, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause No. 1083272.
Panel consists of Chief Justice RADACK and Justices NUCHIA and HIGLEY.
SAM NUCHIA, Justice.
A jury convicted appellant, Jose Elias Morales, of aggravated sexual assault of a child and assessed punishment at 58 years in prison. In one issue, appellant alleges that the trial court abused its discretion by denying his motion for acquittal. He argues that the evidence was legally and factually insufficient because the two eyewitnesses were not credible. We affirm.
Background
Appellant shared a one-bedroom apartment with V.V. and her two young children, three-year-old daughter L.V. and an infant son. One day, appellant's daughter Jessica Morales, her boyfriend Marvin Montes, and their two children came to appellant's apartment. When they arrived, V.V. was in the living room, changing her infant son's diaper. Jessica and Marvin went to the bedroom, where the door was ajar. They both saw L.V. lying on the bed, legs apart, with her underwear pulled down to her knees, with appellant standing over her, with his erect penis touching L.V.'s sexual organ. When he noticed Jessica and Marvin in the room, appellant jumped up and pulled up his pants. Jessica and Marvin left, taking their children to a neighbor's apartment. At trial, Jessica testified that she did not confront her father because she was shocked, upset, and crying. Marvin testified that he did not confront appellant because he was concerned for Jessica and their children. From the neighbor's apartment, Jessica called V.V. and asked her to bring L.V. to the neighbor's apartment. V.V. left the apartment with her children and went to see Jessica. After Jessica told V.V. what she saw, V.V. called the police. V.V. and L.V. were taken to Texas Children's Hospital, where a nurse examined L.V. for sexual assault. Although the examination was inconclusive, the nurse testified that a man's erect penis could contact a child's genital area without leaving any physical injury. She also testified that while she examined L.V., L.V. made a spontaneous statement to her and L.V. inserted her finger into her own vagina. The defense rested without presenting any testimony. In his sole issue, appellant contends that the trial court abused its discretion by denying his motion for acquittal at the close of the State's evidence. He argues that the evidence is legally and factually insufficient because: (1) the two eyewitnesses were not credible; (2) the two eyewitnesses did not confront him or V.V. with their observations before they left the apartment; and (3) there was no physical evidence. Standard of Review
Appellant was convicted of aggravated sexual assault of a child. A person commits aggravated sexual assault if the person intentionally or knowingly "causes the sexual organ of a child to contact . . . the . . . sexual organ of another person, including the actor." Tex. Penal Code Ann. § 22.021 (a)(1)(B)(iii) (Vernon Supp. 2008). "Child" is defined as "a person younger than 17 years of age who is not the spouse of the actor." Tex. Penal Code Ann. § 22.011(c)(1) (Vernon Supp. 2008). Legal Sufficiency
In evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). We note that the trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). Factual Sufficiency
When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997). We will set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before holding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). We may not re-weigh the evidence and substitute our judgment for that of the factfinder. King v. State, 29 S.W.3d 556, 562-63 (Tex.Crim.App. 2000). The factfinder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the factfinder's evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. As the determiner of the credibility of the witnesses, the factfinder may choose to believe all, some, or none of the testimony presented. Id. at 407 n. 5. Discussion
Here, taken in the light most favorable to the verdict, the evidence was not legally insufficient to establish appellant's guilt. Jessica and Marvin both testified that they witnessed the assault. A rational trier of fact could have found that appellant committed aggravated sexual assault against L.V. beyond a reasonable doubt. See Vodochodsky, 158 S.W.3d at 509. The evidence is also not factually insufficient. The defense presented no witnesses, nor did it elicit contradictory testimony from the State's witnesses. Appellant argues that Jessica and Marvin testified that they saw appellant and L.V. in slightly different positions on and near the bed while appellant assaulted L.V. Appellant contends that this makes their testimony contradictory. It does not. Both Jessica and Marvin testified that they saw appellant touch L.V.'s sexual organ with his penis. By its verdict, the jury determined that the witnesses were credible, and we do not substitute our judgment for theirs. See Cain, 958 S.W.2d at 408-09. Similarly, the jury believed Jessica's and Marvin's explanations as to why they did not confront appellant and the nurse's explanation of why there would not necessarily be physical evidence. The evidence that appellant sexually assaulted L.V. is neither so weak that the verdict was clearly wrong and manifestly unjust nor was the verdict against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. Because we conclude that the evidence was both neither legally nor factually insufficient, we hold that the trial court properly denied appellant's motion for acquittal. We overrule appellant's sole issue. Conclusion
We affirm the judgment of the trial court.