Opinion
No. 14-04-01091-CR
Memorandum Opinion filed March 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 212th District Court, Galveston County, Texas, Trial Court Cause No. 02CR1934. Affirmed.
Panel consists of Justices HUDSON, FROST, and SEYMORE.
MEMORANDUM OPINION
Appellant, Anthony Leroy Callis, was found guilty by a jury for sexual assault of a child and sentenced to seven years' incarceration in the Texas Department of Criminal Justice, Institutional Division. In his sole issue in this appeal, appellant challenges the factual sufficiency of the evidence supporting his conviction. We affirm. At the time of the assault on September 1, 2002, appellant was the manager of a singing group of which the complaint, B.M., was a member along with two other females — Bridget and Dominic. B.M. apparently met appellant through a telephone "auditioning" service that gave appellant the opportunity to hear a variety of choral voices. After sampling the voices, appellant left a message for B.M. to call him. After speaking on the phone, appellant asked B.M., Bridget, and Dominic to sing at his father's funeral. B.M. had initially told appellant that she was 17 years old, but later, before the incident, she told him she was 14. At 8:30 a.m., on August 31, 2002, appellant and his sister picked up B.M., Bridget, and Dominic at B.M.'s home in Houston to take them to his father's funeral in Galveston. After the funeral, they eventually went to appellant's sister's apartment in Galveston. B.M. and Dominic stayed at the apartment, while Bridget went to a club with some other people. David Brown, who was appellant's brother-in-law, and his two children lived in the apartment with Brown's sister and her four children. Brown and all six children were home the evening of August 31, 2002. B.M. and Dominic stayed in the living room, the boys slept in one bedroom, the girls slept in another bedroom, and Brown slept in his own bedroom. One of Brown's nephews woke him up and said appellant was at the door. Brown told his nephew to let appellant in. B.M. testified that she had fallen asleep on couch, when appellant woke her up and told her to go into his sister's bedroom. B.M., however, did not leave the couch and went back to sleep. At some point, B.M. got up and went into appellant's sister's bedroom and got into bed. B.M. was dressed, with the exception of having taken off her pants, when she got into bed. Appellant stopped by the bedroom and asked if B.M. if she needed anything. B.M. said no and asked appellant to get Dominic, who was still in the living room. Appellant left and B.M. turned off the light. At some point, B.M. "felt a breeze under the cover. . . . Like the cover lifting up." B.M. thought it was Dominic. However, B.M. then "felt [someone] touching" her leg and buttock. She turned over, saw appellant, and asked him what he was doing. Appellant told her to be quiet and started touching her again. B.M. told appellant to stop and to get Dominic; appellant said okay and left. Appellant, however, returned and started touching B.M. again. When she told him to stop, he told her to be quiet. Appellant then moved her underwear to the side and got on top of her. B.M. did not say anything because she was scared. Appellant put his penis inside her "private area" and "then about two seconds later," David Brown knocked on the door, entered the bedroom, and told appellant to get out. After the incident, B.M. was taken to the house of another sister and then to the hospital. David Brown gave a different account of what he observed between appellant and B.M. during the early morning hours of September 1, 2002. Brown testified that he kept hearing the children going up and down the hallway. When he got up, he found the bathroom door closed, which he usually keeps open and the light on for the children. Brown found the shower on, but no one in the bathroom. Brown could not find appellant or one of the young ladies. Brown heard a noise coming from his sister's bedroom. When Brown opened the door and turned on the light, he saw appellant and complainant on top of the covers, with appellant's head between B.M.'s legs. According to Brown, B.M. was wearing a shirt, but no underwear. Brown told appellant to get out. He also told B.M. to get dressed and leave. Brown described B.M.'s behavior as being consistent with his having "caught them doing something they weren't supposed to be doing." Brown has a 1990 drug conviction. Dr. James Lukefahr, a pediatrician at UTMB in Galveston and the medical director of the ABC Center, a facility that examines children who may be the victims of child abuse or neglect, did not personally examine B.M., but testified that an emergency room examination revealed no findings of trauma. Dr. Lukefahr explained there are a number of factors that can contribute to no findings of trauma. One factor is if the assault did not involve a great degree of violence or coercive force. Another factor is the maturity level of the child. The physician who performed the emergency room examination noted that B.M. was sexually mature, i.e., an adult physically, which means it is possible for there to be no dramatic physical injuries. Dr. Lukefahr further testified that the Department of Public Safety crime lab report states the rape kit, clothing, and bed sheets were submitted for analysis, but nothing was found that appeared to be semen, blood or other material that could be tested. Dr. Lukefahr also explained that no DNA analysis was conducted on the hairs because they belonged to B.M. Finally, although trace evidence was collected from the bed sheets and B.M.'s clothes, the examiner made the decision not to test that material. Appellant challenges the factual sufficiency of the evidence supporting his conviction. When reviewing the factual sufficiency of the evidence, we need answer only one question: Considering all of the evidence in a neutral light, was the trier of fact rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). There are two ways in which the evidence may be insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be evidence both supporting, and contrary to, the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met and the guilty verdict should not stand. Id. at 485. The indictment alleged appellant caused contact or penetration of the complainant's female sexual organ with his penis and that he caused the complainant's female sexual organ to contact his mouth. The court's charge, however, asked only whether appellant had committed assault by contact or penetration of the female sexual organ with his penis. Therefore, according to appellant, the State's case hinged on whether the jury believed Brown's version or B.M.'s version of what occurred. Based on the conflicting testimony by B.M. and Brown, appellant contends it is not reasonable to find beyond a reasonable doubt a fact that is contradicted by testimony without other evidence to support one side or the other. The indictment may allege different ways of committing the offense in the conjunctive and the jury may be charged in the disjunctive. Vasquez v. State, 665 S.W.2d 484, 486 (Tex. (Tex.Crim.App. 1984), overruled on other grounds by Gonzales v. State, 723 S.W.2d 746 (Tex.Crim.App. 1987). When the State pleads alternative theories of the same offense, it is not required to prove guilt under all the theories alleged. Lawton v. State, 913 S.W.2d 542, 551 (Tex.Crim.App. 1995), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App. 1998). Therefore, if there is sufficient evidence to prove one of the two ways of committing the offense, the appellate court need not consider whether the evidence is sufficient to prove the alternative theory. Vasquez, 665 S.W.2d at 486. The jury charge instructed the jury to find appellant guilty if he caused "contact or penetration" of the female sexual organ. Appellant did not move for the State make an election on manner. Thus, because the indictment and jury charge alleged two different ways of committing the offense, proof of either manner, i.e., contact or penetration, is sufficient to sustain the conviction. A review of the record reveals the evidence supports both contact and penetration. Contact is sufficient to constitute penetration if it is more than mere external contact with the outer vaginal lips. Vernon v. State, 841 S.W.2d 407, 409 (Tex.Crim.App. 1992). B.M. testified that appellant got on top of her, moved her underwear to the side, and put his penis in her "private area." The testimony of a child alone is sufficient to support a conviction for sexual assault. Jensen v. State, 66 S.W.3d 528, 534 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd); Ruiz v. State, 891 S.W.2d 302, 304 (Tex.App.-San Antonio 1994, pet. ref'd); Hellums v. State, 831 S.W.2d 545, 547 (Tex.App.-Austin 1992, no pet.). Appellant also complains of the absence of any findings of trauma. Dr. Lukefahr testified that there may not be findings of trauma where violence or coercive force is not used and where the victim is sexually mature. Here, Dr. Lukefahr described B.M. as sexually mature. Moreover, B.M. did not testify as to any violence, but instead she stated that she kept quiet when appellant told her to because she was scared, suggesting she was submissive. Finally, appellant contends it is not reasonable to find penetration beyond a reasonable doubt when that allegation was contradicted by Brown who said he observed oral sex, not penile contact or penetration. It is within the province of the trier of fact to resolve any conflicts and inconsistencies in the evidence. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.Crim.App. 1995). Moreover, the trier of fact is free to believe or disbelieve part or all of a witness' testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex.Crim.App. 1998). Therefore, the jury was free to believe B.M.'s version of the events of September 1, 2002, and reject Brown's, which apparently it did. When viewed neutrally, the evidence is not so obviously weak as to render the verdict clearly wrong or so greatly outweighed by contrary proof as to indicate manifest injustice. Appellant's sole issue is overruled. Accordingly, the judgment of the trial court is affirmed.