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finding trial court did not abuse discretion in admitting mother's testimony regarding appellant's violence where evidence demonstrated why victim was afraid of appellant and failed to make prompt outcry
Summary of this case from Isenhower v. StateOpinion
Nos. 14-01-01137-CR, 14-01-01138-CR.
Opinion Filed January 30, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the 208th District Court, Harris County, Texas, Trial Court Cause Nos. 849,832 and 849,831. Affirmed.
Before Justices YATES, ANDERSON, and FROST.
OPINION
In separate indictments, appellant, Michael Lynn Mark, was charged with two counts of aggravated sexual assault of a child. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(I), (iii), (2)(B) (Vernon Supp. 2003). In a consolidated trial, the jury found appellant guilty of both counts and assessed punishment, for each offense, at confinement for 15 years in the Institutional Division of the Texas Department of Criminal Justice. The trial court ordered the sentences to run consecutively. We affirm.
FACTUAL BACKGROUND
The complainant, D.S. was a ten-year-old girl at the time of the offense. In April of 2000, D.S.'s cousin, Maurice Lacy, noticed the complainant, D.S., was moping. Lacy asked D.S. what was wrong and D.S. began crying. Lacy told D.S.'s mother, Addreannia, who then took D.S. to another room to talk to her. D.S. told her mother that appellant, who was previously Addreannia's boyfriend, used to come into D.S.'s bedroom at night and kiss her "private parts" and touch her "behind" and her "nasty." D.S. said appellant had done this three or four times over a period of months. D.S. could not tell her mother an exact date but said it was happening around the time Addreannia's brother died, which was in September 1999. After talking to D.S., Addreannia called the police. Addreannia and D.S. went to the Children's Assessment Center where D.S. gave a videotaped statement and was examined by a doctor. D.S. testified at trial that appellant would enter her room at night and touch her vagina with his hand. She also testified that appellant's "privacy part" touched her vagina and that he touched her "private part" with his tongue. Appellant denied the allegations, testifying he never touched D.S. inappropriately. He testified he was in jail from October 1 until November 19, 1999. He also testified, after being released from jail, he worked nights loading trucks at a warehouse in Lufkin, a two and a half hour drive from Houston. Appellant, however, admitted there were nights he did not work at the warehouse and also testified he had been at the residence of D.S. and her mother around Christmas of 1999, which is within the time period the assaults allegedly occurred. This court's cause number 14-01-01137-CR involves the charge for assault in which appellant was alleged to have touched D.S.'s vagina with his mouth, and cause number 14-01-01138-CR involves the charge for assault in which appellant was alleged to have touched D.S.'s vagina with his finger.DISCUSSION
I. Motion for New Trial: Ineffective Assistance of Counsel In his first point of error in both appellate causes, appellant contends the trial court "erred" in not conducting a hearing to determine whether he was receiving effective assistance of counsel. He alleges his trial counsel failed to present critical evidence of the complainant's motive to lie. We review the denial of a hearing on a motion under an abuse of discretion standard. See Reyes v. State, 849 S.W.2d 812, 816 (Tex.Crim.App. 1993). Appellant initially raised the issue of counsel's assistance in a pro se pretrial motion requesting dismissal of his appointed counsel. Appellant alleged counsel had "taken no affirmative [sic], to present evidence that is crucial to defendants [sic] cause," and counsel had "repeatedly made contradictions on how he was going to prepare a defense, and disregards defendants [sic] questions." The motion did not specify the evidence at issue. In a pro se motion for new trial, appellant alleged the trial court "erred in failing to grant either in whole or part the Defendants [sic] Motion to Dismiss Court Appointed Counsel J.C. Carroll" and further alleged the court erred "in refusing to admit into evidence reasons and motives that were crucial in leading to said charges against the defendant." The motion for new trial did not specify any reasons supporting counsel's dismissal. The motion for new trial was overruled by operation of law. See Tex. R. App. P. 21.8(c). There is no indication appellant presented either motion to the trial court. A defendant must present his motion for new trial to the trial court within 10 days of filing it, unless the trial court in its discretion permits it to be presented and heard within 75 days from the date when the court imposes or suspends sentence in open court. Tex. R. App. P. 21.6. A defendant is not entitled to a hearing on a motion for a new trial when he fails to bring the motion to the attention of the trial court. Gumpert v. State, 48 S.W.3d 450, 458 (Tex.App.-Texarkana 2001, pet. ref'd) (citing Carranza v. State, 960 S.W.2d 76, 80 (Tex.Crim.App. 1998)), cert. denied, 122 S.Ct. 1933 (2002). In neither motion did appellant request a hearing. A defendant must request a hearing in order to be entitled to a hearing. Gallegos v. State, 76 S.W.3d 224, 228 (Tex.App.-Dallas 2002, pet. ref'd); Brooks v. State, 894 S.W.2d 843, 847 (Tex.App.-Tyler 1995, no pet.). Finally, appellant never specified the evidence supporting his claim that the complainant had a motive to lie, and he did not provide an affidavit in support of his motion for new trial. When a court cannot determine the issue raised from the record, a defendant must support his motion for a new trial with an affidavit showing the truth of the grounds of attack. Reyes v. State, 849 S.W.2d at 816. "[T]he motion for new trial or affidavit must reflect that reasonable grounds exist for holding that such relief could be granted." Id. See also Melancon v. State, 66 S.W.3d 375, 379-80 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (concluding defendant did not show prejudice absent record of facts witness could have provided had counsel subpoenaed her). We overrule appellant's first point of error in both causes.II. Admission of Extraneous Offense Evidence
The "Extraneous Offense" Evidence in Question In his second and third points of error in both causes, appellant contends the trial court "committed reversible error" in admitting Addreannia's testimony about appellant's assaulting her. Appellant points to the following testimony, in which Addreannia described physical altercations she had with appellant:Q. [By the prosecutor] We had talked a little bit before the break about your daughter saying that she had been afraid to tell you the things that had been happening. Do you recall that?
A. [by Addreannia] Yes, ma'am.
Q. Was there anything that happened in your home when Mr. Mark lived with you that would have made [D.S.] afraid?
A. Yes, there was.
Q. Can you tell the jury what kind of things she would have seen?
A. [D.S.] had seen me and Michael get into arguments and a pushing and shoving match, and she had seen him hold me down and push me and threaten me.
Q. Was it physical between both of you? Did it go in both directions?
A. Yes, it was.
. . .
Q. Were there occasions when your daughter actually saw Mr. Mark doing physical harm to you?
A. Yes, she saw the door get kicked in.
Q. Explain what you mean by that?
A. The back door got kicked in and one bedroom door also had been kicked in.
Q. Could you give the jury some sort of a time frame that you're talking about here?
A. At the time this happened — it happened after my brother's death.
. . .
Q. Did that happen the same month that your brother died or before or after? I'm confused.
A. It was a little after my brother died.
Q. So what month are we talking about?
A. September of '99.
Q. How long did this period of time last when things were kind of physical between the two of you? Was it an off and on thing?
A. It was arguing every other day.
Q. What about the holding and pushing and shoving?
A. It wasn't frequently, but it was a lot of cussing and a lot of arguing.
Q. And [D.S.] saw all of this?
A. Saw and heard.
Q. Specifically, can you pin down the September date that you're referring to?
A. I don't know if I can pin down the date, but it was at the time of my brother's death, and everybody was going through hard times.D.S. did not report the sexual assaults until several months after they allegedly occurred. When previously questioned by her mother about inappropriate touching, D.S. had indicated nothing happened. In its offer of proof, the State justified Addreannia's testimony as validating D.S.'s fear that appellant might hurt D.S. or Addreannia if D.S. told anyone of the incident. Appellant responded by objecting: I would have some objection. We don't have a time frame as it relates to the indictment. We also have extraneouses [sic] that are talked about and the issue has not been raised to allow those extraneous offenses to come in. They do not relate to the issue at hand and that's whether or not he sexually assaulted this little girl. Since we don't have a time frame, it could be any time after the incident or before the incident. I don't know. My objection is that it would be not admissible because no issues have been raised to allow it to come in. There has been no proper time frame laid out, and it does not relate to anything regarding the facts of this case at hand, which is whether the child was molested or not. Arguments on Appeal Rule 404(b) argument. In his second point of error in both causes, appellant complains the evidence was irrelevant and inadmissible under Texas Rule of Evidence 404(b), which provides in relevant part: "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Tex. R. Evid. 404(b). Extraneous offense evidence is admissible if the proponent persuades the trial court the extraneous evidence (1) tends to establish some elemental fact, such as identity or intent; (2) it tends to establish some evidentiary fact, such as motive, opportunity or preparation, leading inferentially to an elemental fact; (3) it rebuts a defensive theory by showing, e.g. absence of mistake or accident or (4) it is relevant to a logical inference not anticipated by the rulemakers. Santellan v. State, 939 S.W.2d 155, 168-69 (Tex.Crim.App. 1997). Thus, the list set forth in Rule 404(b) is neither mutually exclusive nor collectively exhaustive. See Pondexter v. State, 942 S.W.2d 577, 583-84 (Tex.Crim.App. 1996). It is the trial court's task to determine whether extraneous offense evidence is relevant for a non-propensity, or nonconformity, purpose. Ransom v. State, 920 S.W.2d 288, 300 (Tex.Crim.App. 1994). We defer to the trial court's ruling and reverse only for an abuse of discretion. Id. Before the trial court admitted the extraneous offense testimony, Addreannia had testified when D.S. told her about the assault, D.S. was "scared because she thought someone would be hurt if she told me what went on." Addreannia also testified D.S. had told her appellant would kill Addreannia if D.S. told Addreannia what happened and Addreannia would go to jail for letting it happen. Immediately before the State's offer, the State elicited the following testimony:
Q. [By the Prosecutor] Did the two of you before that day ever have a conversation about people touching and what was appropriate or not?
A. [By Addreannia] Yes.
Q. On that day what did she say?
A. On that day I spoke to [D.S.] and she told me nothing had happened.
Q. Did you talk to her on April 23rd and ask her why she said that?
A. Yes, I did.
Q. What did she say?
A. She was scared. She said that she was scared to tell because he said that I was going to go to jail and he was going to kill me.In closing, the State argued: It's true we talked about the fact that her mom asked her about it before and she said nothing was happening. Why? Because she was scared. We talked on voir dire about why a child may not tell. We know she should have not been afraid, but kids are kids. They're afraid of the boogie man and the dark and things other kids are scared of. Remember this guy is a big guy. You saw how little [D.S.] was. The child had seen the pushing and shoving in the house. She had seen some violence in the house. She saw him kick a door in, a back door and a bedroom door. There was a reason for this child to be afraid of this man and he took advantage of her fears. She said that he told her that her mom would be sent to jail. That's taking the one person you love the most, the person that takes care of you, and threatening to send them away. That's very intimidating to a child. It's reasonable then that the child was afraid to say something until the point where he's gone. The extraneous offense evidence was relevant to a non-propensity or nonconformity purpose, i.e., why D.S. did not make a prompt outcry. See Brown v. State, 657 S.W.2d 117, 119 (Tex.Crim.App. 1983); Wilson v. State, 90 S.W.3d 391, 394 (Tex.App.-Dallas 2002, no pet.). The trial court did not abuse its discretion in admitting the extraneous offense evidence over appellant's Rule 404(b) objection. We overrule appellant's second point of error in both causes. Rule 403 argument. In his third point of error, appellant contends the evidence was inadmissible under Texas Rule of Evidence Rule 403 because the prejudicial effect of the evidence substantially outweighed its probative value. Appellant's objection, set forth in its entirety above, referred only to time frame and "extraneous offenses" that did "not relate to the issue at hand." Appellant did not request the court to perform the Rule 403 balancing. Appellant's objection that the evidence constituted "extraneous offenses" did not constitute an objection under Rule 403. See Norrid v. State, 925 S.W.2d 342, 348 (Tex.App.-Fort Worth 1996, no pet.) (stating there was no Rule 403 objection when appellant's objection was only, "It's an extraneous matter which has nothing to do with this case"). After the trial court overruled appellant's Rule 404(b) objection, appellant was required to make further objection under Rule 403 in order to preserve this complaint. Nelson v. State, 864 S.W.2d 496, 499 (Tex.Crim.App. 1993). He did not do so. Even were we to conclude appellant preserved his claim of error under Texas Rule of Evidence 403, the factors we apply to the 403 balancing test weigh in favor of admitting the testimony. These factors include (1) how compellingly the extraneous offense evidence made a fact of consequence more or less probable; (2) the potential the extraneous offense evidence had of impressing the jury "in some irrational but nevertheless indelible way;" (3) the time the State needed to develop the evidence, during which the jury would be distracted from consideration of the indicted offense; and (4) the force of the State's need for this evidence to prove a fact of consequence, i.e., did the State have other probative evidence available to it to help establish this fact, and is this fact related to an issue in dispute. See Wyatt v. State, 23 S.W.3d 18, 26 (Tex.Crim. App. 2000). First, in the present case, the fact D.S. saw appellant kick down two doors and attack Addreannia explained D.S.'s potential fear of appellant. It also explained D.S.'s initial denial of the assaults and her delay in ultimately reporting, making the physical assaults relevant to D.S.'s credibility in a case that turned largely on credibility. Second, because the assault in question (involving D.S.'s mother) was not a sexual assault and did not involve a young victim, the jury was less likely to use the evidence as propensity evidence. The jury was also given a limiting instruction at the close of evidence. Third, the testimony occupies less than three pages in the transcript of a two day trial. Fourth, although Addreannia testified D.S. told her appellant had threatened D.S., D.S. testified only that she was afraid but did not explain why. Evidence she had observed appellant's violent outbursts and assaults on her mother explained D.S.'s fear and reticence to report appellant's sexual assaults on her. We overrule appellant's third point of error in both causes.
III. Sufficiency of the Evidence
Introduction and Standards of Review In his fourth through seventh points of error in cause number 14-01-01137-CR and his fourth and fifth points of error in cause number 14-01-01138-CR, appellant challenges the legal and factual sufficiency of the evidence. We apply different standards when reviewing the evidence for legal and factual sufficiency. When reviewing the legal sufficiency of the evidence, this court must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex.Crim.App. 1993). This standard of review applies to cases involving both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). On appeal, this court does not reevaluate the weight and credibility of the evidence, but we consider only whether the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993). To determine factual sufficiency, we view the evidence in a neutral light and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). We must review the evidence weighed by the jury tending to prove the existence of the elemental fact in dispute, and compare it to the evidence tending to disprove that fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). To reverse on the ground of factual insufficiency, we therefore must determine either (1) the State's evidence was so weak as to be factually insufficient, or (2) the finding of guilt is against the great weight and preponderance of the available evidence ( i.e., that the defendant's evidence so greatly outweighs the State's evidence, the verdict is clearly wrong and manifestly unjust). See id. at 11. These are the two prongs of the factual sufficiency standard of review. See Cates v. State, 66 S.W.3d 404, 409 (Tex.App.-Houston [14th Dist.] 2001, pet. granted). Under the second, alternative sufficiency prong, when the defendant proffers contrary evidence, we consider whether the proof of guilt, although adequate if taken alone, is greatly outweighed by defendant's contrary proof. Johnson, 23 S.W.3d at 11. We may disagree with the jury's decision, even if probative evidence exists that supports the verdict. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). However, a factual sufficiency review must be appropriately deferential to avoid substituting our judgment for the fact finder's. Id. at 648. We are not free to reweigh the evidence, but must exercise our fact jurisdiction only to prevent a manifestly unjust result. Id. (citing Clewis, 922 S.W.2d at 135). Appellant's Challenges to the Sufficiency of the Evidence Legal sufficiency: complainant's credibility. In appellant's fourth point of error in both causes, he does not challenge the legal sufficiency of the evidence supporting any element of the charged offenses. Instead, he contends the evidence was "legally" insufficient solely because the evidence of the offense came only through the complainant's testimony; it was not corroborated by medical or physical evidence, and thus the complainant was not credible. The evidence is legally sufficient, however, so long as the evidence provides the requisite proof needed to satisfy the elements of the offense charged. Bousquet v. State, 47 S.W.3d 131, 137 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd) (noting same when dismissing claim of appellant who argued complainant's videotaped testimony was not credible, and, because no other proof of alleged offense was offered, evidence against him was legally insufficient). Even when the victim is a child, the victim's testimony 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. filed). We overrule appellant's fourth point of error in both causes. Legal sufficiency: nature of alleged conduct in cause number 14-01-01137-CR. In cause number 14-01-01137-CR, the State was required to prove appellant "intentionally or knowingly . . . cause[d] the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor," and the victim was younger than fourteen years of age. Tex. Pen. Code Ann. § 22.021(a)(1)(A)(iii) (2)(B) (Vernon Supp. 2002). In his sixth point of error in this cause, appellant argues the evidence was legally insufficient to establish appellant caused the complainant's sexual organ to contact appellant's mouth as specifically alleged in the indictment. See Roberts v. State, 513 S.W.2d 870, 871 (Tex.Crim. App. 1974) (stating all essential averments in indictment must be proved as alleged); Boyette v. State, 632 S.W.2d 915, 917 (Tex.App.-Houston [14th Dist.] 1982, pet ref'd) (stating same). Appellant argues, because D.S. referred to appellant's tongue touching her "private part," the State did not present sufficient evidence to prove beyond a reasonable doubt that appellant's mouth contacted D.S.'s sexual organ, as alleged. Appellant claims D.S.'s reference to appellant's tongue instead of his mouth, and her "private part" instead of her vagina, provide legally insufficient evidence for a jury to find that appellant's mouth had contacted D.S.'s vagina. Appellant's argument is without merit. In Johnson v. State, however, the court concluded that, in drafting the criminal statute for aggravated assault, the legislature intended the word "mouth" to include the tongue. 882 S.W.2d 39, 41 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd) (quoting Montoya v. State, 841 S.W.2d 419, 422 (Tex.App.-Dallas 1992), vacated on other grounds, 906 S.W.2d 528 (Tex.Crim.App. 1995)). Similarly, we conclude D.S.'s reference to appellant's tongue was legally sufficient to establish appellant caused his mouth to touch D.S.'s sexual organ. The Johnson court also held that, when the complainant had referred to her "private part" and the complainant's mother had testified that complainant used the phrase "private part" to mean her vagina, the evidence was sufficient to show appellant had contacted the complainant's sexual organ. Johnson, 882 S.W.3d at 41. In the present case, D.S. testified that appellant's tongue had contacted her "private part." The complainant's mother testified to what the complainant meant when she referred to her "nasty" and "private part":Q. [by the Prosecutor] Where, if anywhere, did she say that [appellant] would touch her?
A. [by Addreannia] She said [appellant] would kiss her private part and touch her on her behind and her nasty.
Q. What's her nasty?
A. Her private part, her vagina.As stated earlier, conflicts in evidence are for the jury to resolve. Upton v. State, 853 S.W.2d 548, 552 (Tex.Crim.App. 1993). Additionally, child victims are not expected to testify with the same clarity and ability that is expected of adults. Villalon v. State, 791 S.W.2d 130, 134 (Tex.Crim.App. 1990). D.S.'s testimony, taken as a whole, is quite clear. The prosecutor asked D.S.: "Was there ever a time when anybody ever put their mouth on your private part?" D.S. answered "Yes." When asked who did that, she answered that Michael Mark did. When asked how appellant "would put his mouth on [her] private part," D.S. replied "[h]e'd touch it with his tongue." We hold the evidence was legally sufficient to establish appellant caused his mouth to contact D.S.'s sexual organ, as required by the language of the statute and the indictment. We overrule appellant's sixth point of error in cause number 14-01-01137-CR. Factual sufficiency. In his fifth points of error in both causes, appellant argues the evidence was factually insufficient because the complainant was not credible. In his seventh point of error in cause number 14-01-01137-CR, appellant argues the evidence was factually insufficient for the same reasons set forth in his sixth point of error in that cause. We begin our factual sufficiency review in light of our conclusion the evidence was legally sufficient in both causes. Because appellant proffered exculpatory evidence, we examine the record to determine whether the evidence supporting the finding of guilt is so greatly outweighed by the defendant's evidence to the extent that the verdict is clearly wrong and manifestly unjust. See Johnson, 23 S.W.3d at 11. D.S. testified that appellant would come into her room at night and, while she was pretending to still be asleep, he would "start to touch" her. Regarding the digital contact, the prosecutor then asked:
Q. [by the Prosecutor] Where would he touch you?
A. [by D.S.] On my vagina.
Q. What did he touch you with on your vagina?
A. His hand.
Q. Would his hand touch you on the outside part of your vagina or the inside?
A. Outside.
Q. Would he ever go on to the inside?
A. No.
Q. Did his hand stay still or move?
A. It moved.
Q. Would [sic] did it move to?
A. It would move around.
Q. Back and forth?
A. Back and forth.
Q. So when you say it moved back and forth, would it ever go a little bit inside your vagina?
A. Yes.
Q. A second ago you said it didn't I want to make sure you understand. Which one is right?
A. Sometimes it would go in and sometimes it didn't.D.S. later testified when appellant's finger touched her on the outside or inside, it "hurted." Regarding the oral contact, the prosecutor questioned:
Q. [by the Prosecutor] What about was there ever a time when anybody ever put their mouth on your private part?
A. [by D.S.] Yes.
Q. Who did that?
A. Michael Mark.D.S.'s testimony was consistent with her outcry to her mother, Addreannia, and with her statement to Dr. Sheela Lahoti, who examined D.S. at the Children's Assessment Center. Appellant, however, argues D.S. was not credible because (1) she testified appellant left physical evidence of the assault, but no physical evidence was preserved and presented at trial and (2) appellant presented alibi testimony. Appellant refers to D.S.'s testimony that appellant left yellow and white moisture on her stomach and vagina. He then complains that this evidence was not seen by anyone else or preserved, the State did not corroborate D.S.'s allegations with scientific evidence, and D.S.'s outcry was suspicious because she had just seen a film on sexual development. D.S., however, waited to make an outcry until after she and her mother had moved to a place appellant could not find them — several months after the assaults allegedly occurred. Preservation of the evidence about which D.S. testified was unlikely. In addition, Dr. Lahoti, a physician at the Children's Assessment Center, testified when a child tells her she was manually touched in the vaginal area, Lahoti expects to see a normal examination. The lack of physical evidence does not render the evidence factually insufficient to support the guilty verdict. Appellant's alibi evidence does not vitiate the sufficiency of the evidence. The State alleged the assaults occurred on or about December 1, 1999, but did not have to prove an exact date. D.S. told her mother the assaults occurred over a period of several months and were occurring as early as when Addreannia's brother died in September of 1999. D.S. testified the assaults occurred at night. Appellant testified that he was in jail in Harris County from October 1 to November 19, 1999. Appellant also testified that, after his release, he immediately returned to Lufkin, a two and a half hour drive from the residence of D.S. and her mother. In Lufkin, appellant worked nights at a warehouse. Appellant introduced work records, consisting of time cards from Express Personnel Services, showing he worked the following dates: November 23, 25, 26, 28, 29-30, December 1-3, and 5-10. The next time card in the record is for April 25, 2000. On cross-examination, the State elicited the following testimony:
Q. [by the Prosecutor] You said that on Christmas of 1999 you did spend that Christmas with [D.S. and her mother]; is that correct?
A. [by Appellant] Yes.
Q. So if [D.S.] said that you were there on Christmas, that's true, isn't it?
A. Yes, I was there for Christmas.In response to questions about appellant's work records, appellant acknowledged he occasionally had days off:
Q. [by the Prosecutor] Well, I'm looking at the 24th and it says off. Also Saturday the 27th of November it says off.
A. [by Appellant] We were off on that day because of the Thanksgiving holiday.
Q. So you didn't work every day?
A. No, not seven days a week.
Q. That's my point. Then you worked a few days at the end of November and than had a day off?
A. Yes.
Q. Then on Friday the 12th, excuse me. On Friday the 10th of December, that was the last day you worked for them in that year?
A. Yes.
Q. In fact, you didn't work for Express in Lufkin until April of 2000?
A. Yes.
Q. Certainly it's not out of the realm of possibility that on a day off you pretty much could go anywhere you wanted to; would that be accurate?
A. Yes.After reviewing the evidence in a neutral light, we cannot conclude that the State's evidence, although adequate if taken alone, is so greatly outweighed by the defendant's evidence, so as to render the verdict clearly wrong and manifestly unjust. See Johnson, 23 S.W.3d at 11. We therefore conclude the evidence was factually sufficient to support the jury's verdict. We overrule appellant's fifth point of error in both causes and his seventh point of error in cause number 14-01-01137-CR. We affirm the judgments of the trial court. Judgment rendered and Opinion filed January 30, 2003.