Nos. 05-08-01503-CR, 05-08-01504-CR
Opinion Filed March 9, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 416-82024-05 and 416-82025-05.
Before Justices FITZGERALD, MURPHY, and MYERS.
Opinion By Justice MYERS.
Vincent David Werner was convicted of aggravated sexual assault, sexual assault, and three counts of indecency with a child. In four issues, he alleges the State violated his right to a fair trial, ineffective assistance of counsel, legal and factual insufficiency, and that the trial court erred in failing to grant a mistrial. We affirm the trial court's judgments.
FACTUAL AND PROCEDURAL BACKGROUND
In 1994, appellant married Mother, the mother of the two complainants in this case, JG and her younger sister JS. JG and JS were both very young when appellant married Mother, and for most of their lives appellant was their only father figure. They loved appellant, considered him their father, and believed they got along better with him than their mother because he was "easier to talk to." Beginning when JG was "around" fourteen years old, however, she began to feel uncomfortable about some of appellant's actions. He would tell her that he "wanted to check tan lines," and then would move JG's blouse and bra to look at her exposed breasts. Sometimes he would pull down her pants, push aside her underwear, and look at her vagina. JG said she found this behavior "weird and awkward and uncomfortable." Over time, appellant's behavior gradually progressed from simply looking at JG's breasts and vagina to actually touching them. JG said she could not remember the first time that this happened, but she recalled several incidents. On one occasion, appellant entered her room while she was getting ready for a homecoming dance, pulled the top of her dress down, and rubbed her breasts with his hand. When she protested that this felt awkward and tried to pull away, he told her he was "just checking." When touching JG's breasts, appellant often said that he was "just checking your tan lines" or that he "just need[ed] to make sure everything's okay." JG also recalled that appellant would often enter her bedroom at night, after Mother was asleep, and sit down on the bed next to her. He would then "start touching" either her breasts or her vagina. JG testified that she was sixteen years old when appellant first touched her vagina. She was in the kitchen making dinner, and appellant came up behind her and told her he was "going to finger me because I had never been fingered before, and he wanted me to know how it felt." He then slid his hand through the back of her pants and underwear and inserted his fingers into her vagina. When he pulled his hand out of her pants, JG went into the living room. A few minutes later, appellant followed her into the living room, walked up behind her, and again inserted his fingers into her vagina. Appellant would often interrupt JG after she had taken a shower and pull away her towel to look at her breasts. JG remembered this made her feel "[g]ross, awkward, uncomfortable." On one occasion, appellant entered the bathroom while JG was taking a shower with her boyfriend, and JG subsequently admitted to appellant she had had sex with her boyfriend. Later that day, appellant went to JG's room as she was doing her homework and told her "that he was going to show me my G spot, because he had found out that I was having sex. . . ." Appellant told her he needed to show her where her "G spot" was, and he inserted his fingers into her vagina. Later, when JG thought she was developing a vaginal infection, she asked appellant to schedule a doctor's appointment for her. She did not talk to her mother about this because she was afraid her mother would find out she was having sex. Appellant initially told JG he would schedule the appointment, but later told her he could not make the appointment without Mother finding out, and he purchased some Vagisil for JG instead. A few days later, he told her he "needed to check down there to make sure that everything was okay." He pulled her shorts down, ripping off the top button as he did so, and "looked and touched" her vagina. On another occasion, JG was assisting appellant in his woodworking shop when he came up behind her and inserted his fingers into her vagina. Like her older sister, JS could not remember when appellant first touched her inappropriately, but she recalled that appellant touched her breasts several times and her "vaginal area" once, beginning when she was eleven or twelve years old. On one occasion, she was sitting in front of the computer when appellant walked up behind her and started scratching her back underneath her shirt. According to JS, this was something appellant did quite often. On this occasion, however, he unfastened her bra and started rubbing her breasts. On a separate occasion, appellant walked into JS's room after she had gone to bed. After turning on the light, he sat on the bed and said either, "Oh, let me see your tan lines," or, "You have good tan lines." He then pulled down her shirt and touched her breasts with his hands. On another occasion, when JS was twelve or thirteen years old, she complained to appellant that her leg was hurting. Appellant told her lie down and started massaging her leg, but he then moved aside her underwear and started touching her vagina with one hand while massaging her leg with the other. JS told appellant, "Dad, that hurts." She described the pain as similar to "putting a tampon in wrong," and testified that she felt the pain "inside of [her]." She was not sure what to do, so when she heard the dog barking she told appellant she had to "go let the dog in," and she got up and left the room. In August 2004, just a few months before her seventeenth birthday, JG started attending Plano East Senior High School. As she made new friends and became more independent, her feelings about appellant changed and she "really started to see things differently." She knew she would be able to "get out" of the house when she turned eighteen, but she worried that her sister JS "would still be there." She eventually told a friend, Jennifer, about what happened, and Jennifer urged her to tell her mother about the abuse. JG, however, was afraid to tell Mother about the abuse. On Wednesday of the following week, Mother confronted JG and said, "You're acting funny, and something is wrong with you . . . and I don't know how to help you if you can't talk to me." It was then, according to JG's testimony, that she first told her mother about the abuse. JG testified that Mother looked "awful" when she reported appellant's abuse, and that she started to cry. She called JG a liar. Mother later testified that she believed JG was lying "because the man that I thought I was married to couldn't have done that." When Mother accused her of lying, JG defended herself by saying, "Mom, I'm not lying. Dad touches me." JG then ended the conversation and went to her room because Mother told her that "she needed a couple of minutes to think." After going to her room, JG told JS that she had just told their mother "what had happened." JS became upset and started crying, claiming their family would be torn apart. Mother then walked in and told the girls to pull themselves together because appellant would soon be home, but that he was going to visit his "hunting lease" the next day. She told them they should try to "just make it through tonight," and that they could "figure all this out tomorrow." When JS and JG went to church later that night, they both "broke down" and started crying. Their youth pastor saw the complainants crying and asked them "what was going on." JG testified that she told their pastor "what was happening," but that she also told him not to tell anyone about it because her mother "had said, `Don't tell anybody. I can handle this. Don't tell anybody.'" At school the next day, September 2, 2004, JG started crying during an Algebra class and subsequently told her teacher, Christine Tickner, about the abuse. Tickner referred JG to the assistant principal, who contacted Child Protective Services (CPS). CPS took JS, JG, and their brother JO to the Children's Advocacy Center for forensic interviews. The forensic interviews of the girls were videotaped. CPS forensic interviewer Michelle Schuback testified that JG's demeanor was "[s]omewhat serious, but forthcoming," and that JS was more reserved. Schuback claimed both complainants used demonstrations to illustrate their allegations. She explained that this was significant because it indicated they were relating what actually happened to them rather than "regurgitating a story." They were also able to "loop" their stories, or explain details even if interrupted or asked to skip around to different points in time, which Schuback said was another indication they were not merely "regurgitating." After the forensic interviews, the Plano police attempted to schedule a sexual assault nurse exam (SANE) for JS and JG, but Mother refused to allow the examination. JG testified that she would not have told anyone at school about the abuse had she known they would contact CPS, because Mother told her "not to get anyone involved." Although appellant moved out of the house shortly after the complainants' forensic interviews, JG testified that life at home "was awful, awful, awful" because Mother did not believe their outcry. JG and JS both claimed Mother often called them liars and asked if they were, in JS's words, "making it up." JS further alleged that Mother offered to purchase new clothes for her if she recanted her allegations. JS said that she became "fed up" with the pressure and eventually recanted, but she immediately retracted the recantation and told Mother, "Mom, you know it is true, and these sweaters aren't going to change it." Mother invited appellant to spend Thanksgiving Day, 2004, with her and the children at the family home. JG claimed her mother told her that appellant "needed family on Thanksgiving and that she was going to allow him into the home." Mother testified that she had asked the complainants about inviting appellant back into the home for a holiday visit, and that they told her they "didn't care." Mother acknowledged her relationship with JG was "strained" at this point because "she had made the outcry, and I didn't believe her." JG testified she "hated" Mother for inviting appellant back into the home, and she could not understand why she would do such a thing. JG did not talk to appellant during the Thanksgiving Day visit. Appellant moved back into the house in January of the following year. He testified that he did this because he was under the belief the complainants had recanted their prior accusations, that his wife and children wanted him to return, and that there was no legal reason he could not return home. In March 2005, JG's drill team coach learned that appellant was residing in the home and reported appellant's return to CPS. CPS subsequently removed all three children to foster care. Belissa Lippert, the CPS investigator who was involved in the decision to remove the children to foster care, testified that she decided to remove the children from the home "[b]ecause of the fact that [Mother] still did not believe the allegations and that she had allowed [appellant] back into the home," and had told "the children that they were lying." The children were allowed to return home fourteen days later under the custody of the complainants' maternal grandmother (Grandmother). Mother was allowed to live with them, and although at that point she did not believe the complainants' allegations regarding the abuse, their relationship slowly improved. She testified that she started "believing" the complainants' accusations after CPS "took the kids out of the home and took them away from" her, which was approximately six months after the original accusations had been made. Mother said that she was devastated and angry that the children had been removed from the home because she thought "we could work this out within our family." She added that "it was just too much for me to handle" and that she "just didn't believe that it was true." She also testified as follows: Q. [PROSECUTOR]: At that point, were you going to do anything you could to get them back?
A. Absolutely.
Q. Would you have told C.P.S. that you believed your kids, even if you didn't at that point?
A. Yes, to get them back.
By the time this case was called for trial, Mother had divorced appellant and remarried. She testified that she regretted not believing the complainants' accusations and now thought that, looking back, "it could have happened" because appellant and JG's relationship "was too close." The defense presented testimony from some of appellant's neighbors and co-workers. Joe Christian, Craig Newsome, and Mike Phelan, for example, had worked with appellant at Perot Systems. They testified that appellant had a good reputation for truthfulness and they never saw him behave inappropriately around children. Bill Kennedy and Jeff Bulla knew appellant through the Collin Creek Community Church in Plano, which they and appellant attended regularly. They testified that appellant had a good reputation for truthfulness and possessed an outstanding moral character. Denise Grimes had worked with Mother at a Plano assisted living facility for seniors, and "routinely" looked after JG, JS, and JO. She said appellant was very truthful, that he was "safe around children," and that she "would trust my own children with him." Grandmother also testified that appellant had a good reputation for truthfulness. Grandmother testified that she lived with her husband in a garage apartment that was attached to appellant's and Mother's house. She lived in that apartment during the period of time when the abuse was allegedly taking place, and she claimed that she never saw any inappropriate behavior. Grandmother testified that she was at home nearly "all the time" because her husband, who suffered from COPD, or chronic obstructive pulmonary disease, "was on a lot of oxygen, day and night," and required constant attention. She added that she spent most of her time in the kitchen of the home and never entered its bedroom areas at night. She stated that appellant was "a great man" who "wouldn't lie," and that she did not believe he had done anything wrong. Appellant testified in his defense. He explained that he had a "great family" and a good family life. He said the problems with his step-daughters started when he came home early from work one day and found JG in the shower with her boyfriend. JG begged him not to tell Mother about this because she would get into trouble. A few days later, JG approached him about a "female problem" that she was having, and she told appellant that she could not go to the doctor because Mother would find out that she had been having sex. She started crying and "begged" him "to look and see if I could see what the problem was." Only then did appellant look at her vagina. He said he did this only because he let "a very manipulative little girl convince me," and that he tried "to get her to go to the doctor." JG stopped seeing her boyfriend shortly afterwards, and she started attending a new high school and began spending time with different friends. Later, JG asked for permission to attend a Friday night football game with Jennifer. Appellant testified that he and Mother "were unsure of this new person that [JG] was hanging out with," so they allowed JG to attend the game provided she would "have her cell phone on her, and she would keep in contact with us." That evening, Mother tried to call JG several times, but there was no answer on JG's cell phone. After JG got home later that night, appellant and Mother "grounded" her because she "didn't follow instructions" and leave "her cell phone on." When asked how JG responded to this punishment, appellant recalled that, "Like normal, she was very upset." A week later, Mother called appellant and told him about the complainants' accusations. Appellant denied ever touching or exposing JG's or JS's breasts or vagina. Appellant was charged in two indictments with nine counts of sexual offenses against JS and JG. Appellant was convicted of one count of aggravated sexual assault involving JS, one count of sexual assault involving JG, two counts of indecency with a child involving JS, and one count of indecency with a child involving JG. He was sentenced to thirty-five years in prison for aggravated sexual assault, twenty years in prison for sexual assault, and twenty years for each of the indecency with a child counts. All of these sentences were ordered to run concurrently. The trial court denied appellant's motion for new trial, and he brought this appeal. DISCUSSIONAppellant's right to a fair trial
In his first issue, appellant claims the State violated his right to a fair trial (1) by "coercing" his ex-wife into testifying against him; (2) by attempting to "coerce" his pastor into changing his opinion about appellant's innocence; and (3) because the prosecutor's closing argument was improper in that it faulted appellant for not introducing the forensic interview videos into evidence when the State knew he did not have access to those videos. Mother's Testimony Beginning with appellant's first contention, he argues the State coerced Mother into testifying against him at trial. The State argues, however, that appellant did not preserve this complaint for appellate review because he never brought it to the trial court's attention. We agree. To preserve error regarding the admissibility of evidence, the defendant must make a timely and specific objection as soon as the basis for the objection becomes apparent, and the complaint on appeal must comport with the trial objection. See TEX. R. EVID. 103(a)(1); TEX. R. APP. P. 33.1(a)(1)(A); Heidelberg v. State, 144 S.W.3d 535, 536 (Tex. Crim. App. 2004). Even constitutional issues can be waived if they are not brought to the trial court's attention. See Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000). In this case, appellant did not object to Mother's testimony on the basis that she was coerced. By allowing her to testify without objection, appellant failed to preserve error. Nor are we persuaded by appellant's contention that we should treat his complaint as one of fundamental error that can be reviewed on appeal. According to the general rule, in the absence of proper procedural perfection of error, the only types of errors that may be raised for the first time on appeal are complaints that the trial court disregarded an absolute or systemic requirement or that the appellant was denied a waivable-only right that he did not waive. Bessey v. State, 239 S.W.3d 809, 812 (Tex. Crim. App. 2007); Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004); Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997). Neither exception applies in this case. We also note that appellant does not cite any legal authority to support his assertion of fundamental error. Blair Ritchie Appellant also claims he was denied a fair trial because the State tried to convince his pastor, Blair Ritchie, to change his opinion regarding appellant's innocence. During the hearing on appellant's amended motion for new trial, Ritchie testified that, prior to trial, he "was visited by one of the members of the prosecution," Barnett Walker. Ritchie claimed that when Walker interviewed him about the charges, Ritchie told him that JG and JS were not trustworthy, and that he did not believe the charges against appellant. In response, Walker allegedly attempted to persuade Ritchie about why he should believe the complainants' accusations: Q. [DEFENSE COUNSEL]: . . . After you had indicated to Mr. Walker the questions you had about the girls' veracity, did Mr. Walker do anything?
A. [RITCHIE]: We had a — we had a conversation about that, and he indicated that — that he had a different opinion and why he had that opinion.
And he had with him some files from interviews that had been done with the girls, and Mr. Walker indicated that he had had a lot of experience with this and that he was convinced beyond a shadow of a doubt of — of [appellant's] guilt.
And he showed me those files and the transcripts of those interviews as a support of why he felt the way he did.
Q. Is it your opinion that he was trying to convince you to change your mind?
A. Well, I — I think he was trying to definitely influence my belief about — about the case and give me information maybe he thought I didn't have, so it was definitely an influential conversation, yes.
Asked about this conversation at the motion for new trial hearing, Walker testified: . . . I did try to explain to him why I felt these allegations were true.
I shared information with [Ritchie] that I've used to support my opinion as to why they were true because I — I knew there was a good likelihood that [appellant] would be around other children in the church, and I thought he had a right to know why I felt that he might be in danger.
Although subpoenaed several times, Ritchie was not called to testify at the trial of this case. According to appellant, "[t]he State ultimately elected not to call Pastor Ritchie as a witness at trial, probably because Pastor Ritchie never waivered in his support of [appellant]." We conclude appellant did not preserve his complaint for appellate review. To preserve error, a defendant must make a timely objection that comports with the complaint on appeal. See Heidelberg, 144 S.W.3d at 536. Appellant's only objection regarding Ritchie was raised in his amended motion for new trial, where he argued the State failed to disclose exculpatory information that was allegedly revealed in Walker's interviews with Ritchie. Appellant never claimed the State coerced Ritchie or that it violated the presumption of innocence. Thus, since the complaint at trial does not comport with the complaint on appeal, appellant's argument is not preserved for appellate review. State's Closing Argument Appellant argues the State's closing argument was improper because the prosecutor faulted him for not introducing into evidence the video recordings of CPS's forensic interview of JG and JS, despite knowing appellant did not have access to those videos. According to the record, as one of her final comments to the jury during closing arguments at the end of the guilt-innocence portion of the trial, the prosecutor argued: You know, Defense Counsel talked a little bit about the video. Well, you know what, ladies and gentlemen? We can't admit it, the State. But I can bet you that if there was something on there they wanted you to see, they know they can admit it, and they would have.
Appellant's trial counsel did not object to this statement. We again conclude appellant failed to preserve his complaint for appellate review. A timely, specific objection was required to preserve error. See Heidelberg, 144 S.W.3d at 536. Appellant claims, citing Jimenez v. State, No. 04-08-00121-CR, 2009 WL 700655, at *10 (Tex. App.-San Antonio Mar. 18, 2009, no pet.), that his claim should be reviewed for fundamental error. The court in Jimenez, however, applied the Almanza standard of review, which only applies to jury charge error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). The court of criminal appeals has concluded that an objection is required to preserve jury argument error for appellate review. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). In this case, when the prosecutor made the complained-of jury argument, appellant did not object. Therefore, he failed to preserve error. We overrule appellant's first issue. Ineffective Assistance of Counsel
In his second issue, appellant alleges eight separate instances of ineffective assistance of counsel. According to appellant, his trial counsel failed to: (1) object to Mother's allegedly coerced testimony; (2) object to testimony from Mother, CPS forensic interviewer Michelle Schuback, and Officer James Phelan of the Plano Police Department because they allegedly offered "impermissible" opinion testimony concerning the complainants' veracity; (3) object to the State's closing argument that allegedly faulted appellant for not introducing the complainants' forensic interview tapes into evidence; (4) object to the testimony of Michelle Neely, the CPS investigator, for allegedly commenting on appellant's invocation of his rights to remain silent and to an attorney during his CPS interview; (5) object to the admission into evidence of appellant's mug shot; (6) preserve error or make an offer of proof regarding Mother's alleged efforts to persuade Grandmother against testifying on appellant's behalf; (7) prepare and call Blair Ritchie, appellant's pastor, as a trial witness. Appellant's eighth and final claim is that the "cumulative impact" of these errors requires reversal. The State argues the record is insufficiently developed to address appellant's complaints and that, without an adequate record, this Court cannot determine that counsel's actions were not based on sound trial strategy. We agree. Applicable Law It is appellant's burden to show by a preponderance of the evidence that trial counsel's performance was deficient in that it fell below the prevailing professional norms and the deficiency prejudiced the defendant; in other words, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Id. In most cases, a silent record providing no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Furthermore, counsel should ordinarily be given an opportunity to explain his actions before being condemned as incompetent. Rylander, 101 S.W.3d at 111. Because the reasonableness of counsel's choices often involves facts that do not appear in the record, an application for a writ of habeas corpus is normally the preferred vehicle for raising ineffective assistance of counsel claims. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Analysis The record in this case does not provide us with any explanation of counsel's actions. Appellant filed an original and an amended motion for new trial, but the issue of ineffective assistance of counsel was never raised. One of appellant's two trial attorneys, Danette Alvarado, testified at the December 29, 2008 amended motion for new trial hearing, but she was not questioned regarding any of appellant's ineffective assistance of counsel complaints, nor was any such testimony offered by affidavit. As a result, counsel were never given an opportunity to explain their actions or trial strategy. Therefore, as was the case in Thompson, the record provides no discussion of trial counsel's purported errors. It contains no discernible explanation of the motivation behind counsel's actions, nor does it contain any discussion of counsel's trial strategy. Because the record is silent regarding any explanation for counsel's actions, we cannot conclude appellant has met his burden to overcome the strong presumption of reasonable assistance. See Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003) ("The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose of establishing this claim."); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (appellate court is not required to indulge in speculation concerning counsel's decision-making processes or to imagine reasons why counsel acted or failed to act in a particular manner). We conclude the record is insufficient to support appellant's ineffective assistance complaints on direct appeal. We overrule appellant's second issue. Legal and Factual Sufficiency
In his third issue, appellant claims the evidence is legally and factually insufficient to support the convictions. Legal Sufficiency Standard of Review In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). The jury is responsible for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. The jury is the sole judge of the weight and credibility of the evidence. See TEX. CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for the jury's. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We "determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the jury resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. Applicable Law Appellant was convicted of one count of aggravated sexual assault involving JS, one count of sexual assault involving JG, and indecency with a child as to both JS and JG. A person commits aggravated sexual assault of a child if he intentionally or knowingly causes the penetration of the anus or female sexual organ of a child younger than fourteen years of age "by any means," or causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the defendant. TEX. PENAL CODE ANN. § 22.021(a)(1)(A), (a)(2)(B) (Vernon Supp. 2009). A person commits sexual assault if the person intentionally or knowingly causes the penetration of the anus or female sexual organ of a child younger than seventeen years of age "by any means" or causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the defendant. Id. § 22.011(a)(2)(A), (C), (c)(1). A person commits the offense of indecency with a child by contact if, with a child younger than seventeen years of age, the person engages in sexual contact with the child. Id. § 21.11(a)(1). "Sexual contact" is defined to include the following acts, if committed with the intent to arouse or gratify the sexual desire of any person: (1) "any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child;" or (2) "any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person." Id. § 21.11(c). For all of the above offenses, the testimony of a child victim alone is sufficient to support a conviction. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (Vernon 2005); Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978); Soto v. State, 267 S.W.3d 327, 332 (Tex. App.-Corpus Christi 2008, no pet.); Lee v. State, 176 S.W.3d 452, 458 (Tex. App.-Houston [1st Dist.]2004), aff'd, 206 S.W.3d 620; Lane v. State, 174 S.W.3d 376, 386 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd). Analysis In this case, each complainant testified that appellant touched her breasts and her vagina. JG testified in detail regarding how appellant started by looking at her exposed breasts and progressed to touching her breasts and her vagina. She also testified that appellant inserted his finger into her vagina on several occasions. JS testified that appellant touched her breasts on numerous occasions, beginning when she was eleven or twelve years old and ending when she was fourteen, and touched her vagina when she was twelve or thirteen years old. The jury could have reasonably credited this testimony, especially when considering the details the complainants provided about where and how often the abuse occurred. Additionally, the jury heard Schuback's testimony concerning how each complainant described the assaults by using sensory details, demonstrations, and "looping" during their forensic interviews. Considering the evidence in a light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's convictions for sexual assault and indecency with a child. Appellant argues the evidence is legally insufficient to support his conviction for aggravated sexual assault of a child because there is no physical or circumstantial evidence to prove the element of penetration, apart from JS's testimony that "it hurt" when appellant touched her vagina. Count one of the indictment in cause number 05-08-01503-CR alleged that appellant intentionally and knowingly caused the penetration of the sexual organ of JS, a child then younger than fourteen years of age, by using his finger. To establish penetration of a female sexual organ, the State need not prove entry into the vaginal canal; proof beyond a reasonable doubt of "entry" or a "passing through" of the outer vaginal lips is sufficient. Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992); Rodda v. State, 926 S.W.2d 375, 378 (Tex. App.-Fort Worth 1996, pet. ref'd). The State may satisfy its burden through circumstantial evidence or through the victim's testimony alone. Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990); Tear, 74 S.W.3d at 560. Medical evidence is not required, nor is specific testimony from the victim that penetration occurred. Villalon, 791 S.W.2d at 133; Bottenfield v. State, 77 S.W.3d 349, 355 (Tex. App.-Fort Worth 2002, pet. ref'd); Empty v. State, 972 S.W.2d 194, 196 n. 1 (Tex. App.-Dallas 1998, pet. ref'd). JS testified that "it hurt" when appellant touched her vagina, but she also testified that the pain she experienced when appellant touched her vagina was like "putting a tampon in wrong," and that she felt this pain "inside of [her]." Viewed in the light most favorable to the verdict, her testimony was sufficient to support the jury's determination that appellant penetrated JS's sexual organ with his finger. Although appellant discounts JS's testimony, it was for the jury, as the fact finder, to determine what weight to give that testimony. Accordingly, we conclude the evidence is legally sufficient to support the conviction. Factual Sufficiency Standard of Review In a factual sufficiency review, we consider whether, after viewing the evidence in a neutral light, a rational trier of fact was justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). We "must be cognizant of the fact that a jury has already passed on the facts and must give due deference to the determinations of the jury." Lancon v. State, 253 S.W.3d 699, 704-05 (Tex. Crim. App. 2008). "A verdict should be set aside only if the evidence supporting the verdict is so weak as to render the verdict clearly wrong or manifestly unjust." Id. at 705. Consequently, we will not reverse a judgment on a factual sufficiency challenge unless we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. Watson, 204 S.W.3d at 417. In determining whether the evidence is factually insufficient to support a conviction that is supported by legally sufficient evidence, it is not enough for us to "harbor a subjective level of reasonable doubt to overturn [the] conviction." Id. We cannot conclude a conviction is clearly wrong or manifestly unjust simply because we would have decided differently than the jury or because we disagree with the jury's resolution of a conflict in the evidence. Id. We may not simply substitute our judgment for the jury's. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless we conclude it is necessary to correct a manifest injustice, we must give due deference to the jury's determinations, "particularly those determinations concerning the weight and credibility of the evidence." Johnson, 23 S.W.3d at 9. Our deference in this regard safeguards the defendant's right to a trial by jury. Lancon, 253 S.W.3d at 704. JG JG testified that appellant started by looking at her exposed breasts and progressed to touching her breasts and vagina. She also testified that he pulled down her homecoming dress and "rubbed" her breasts; came into her room at night and touched both her breasts and vagina; inserted his fingers into her vagina while she was making dinner; inserted his fingers into her vagina while telling her that he needed to show her where her "G spot" was; looked at and touched her vagina to "make sure that everything was okay"; and touched her vagina while she assisted appellant in his woodworking shop. Appellant claims JG's testimony is not credible because her "stories had expanded greatly from the time of her initial reports to CPS such that even JG admitted to adding facts," and she had a motive to lie because appellant caught her having sex with her boyfriend. Although JG testified in more detail at trial than in her forensic interview, she claimed the forensic interviewer only told her to be truthful, not to relate "every single incident" that had occurred, and that she was frightened and did not know she "had to share absolutely everything" with the interviewer. Schuback testified that she did not expect the complainants to tell her about "every single little detail" of abuse and that, in any event, it is difficult for children to recall every incident of abuse if it happens repeatedly over a period of time. Furthermore, the record indicates that JG broke up with her boyfriend before she alleged any abuse, and that she was married by the time of trial, living out of state, and expecting a child. Mother had been divorced from appellant for several years and remarried. The jury could have concluded there was no reason for JG to falsely accuse appellant merely to conceal an already-admitted sexual relationship with a former boyfriend. The jury weighed the credibility of the witnesses and we are not at liberty to substitute our judgment for the jury's. See Johnson, 23 S.W.3d at 12; Cain, 958 S.W.2d at 407. Viewing all the evidence in a neutral light, the evidence supporting the convictions is not so weak that the jury's determinations are clearly wrong and manifestly unjust, nor does the conflicting evidence so greatly outweigh the evidence supporting the convictions that the jury's determinations are manifestly unjust. See Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414-15, 417. Accordingly, we conclude the evidence is factually sufficient to support the convictions involving JG. JS JS testified that appellant touched her breasts on numerous occasions, beginning when she was eleven or twelve years old and ending when she was fourteen, and that he touched her vagina when she was twelve or thirteen years old. She described how he touched her breasts after scratching her back and after asking to see her "tan lines." She also testified that appellant touched her vagina while massaging her leg. JS's testimony was partially corroborated by JG's testimony and by Schuback's testimony that JS was able to describe the assaults using sensory details, demonstrations, and "looping" that showed she was explaining what happened to her and not just repeating a rehearsed claim. Appellant claims the evidence supporting guilt is weak because JS's testimony is insufficiently detailed and she once recanted the allegations. However, the record shows that JS's testimony included details such as appellant removing her bra before touching her breasts, turning on the light in her bedroom before touching her, and which hand appellant used to massage her leg before pushing aside her underwear to touch her vagina. Although JS testified that she once told her mother, "Okay, it's not true," she claimed that she immediately "took it back" and said, "Mom, you know it's true, and these sweaters aren't going to change it." JS also claimed "it hurt" when appellant touched her vagina, and that the pain she experienced when appellant touched her vagina was like "putting a tampon in wrong." She testified that she felt this pain "inside of [her]." Notwithstanding appellant's argument, JS's testimony was factually sufficient to establish the element of penetration. See Vernon, 841 S.W.2d at 409; Villalon, 791 S.W.2d at 133. The fact that JS could not recall the specific dates or times on which the abuse allegedly occurred does not render her testimony so weak that it cannot support the jury's verdict, given that the trial was held four years after the last incident and the abuse occurred repeatedly over time. Appellant also claims the evidence is insufficient because there is no testimony supporting the specific dates alleged in the indictment. However, the State alleged that the offenses occurred "on or about" two dates: February 1, 2002 and August 15, 2004. It is well established that the "on or about" language allowed the State to prove a date other than the one alleged in the indictment as long as the date was anterior to the presentment of the indictment and within the statutory limitation period. See Ex parte Goodman, 152 S.W.3d 67, 71 (Tex. Crim. App. 2004); Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997). The primary purpose of specifying a date "is not to notify the accused of the date of the offense." Garcia v. State, 981 S.W.2d 683, 686 (Tex. Crim. App. 1998). Rather, the date is intended to show the prosecution is not barred by the statute of limitations and provide the defendant with sufficient notice to prepare an adequate defense. Id. The indictment in this case was filed on September 6, 2005. There is no statute of limitations for sexual assault of a child, aggravated sexual assault of a child, or indecency with a child. See TEX. CODE CRIM. PROC. ANN. art. 12.01(1)(B), (E) (Vernon Supp. 2009). JS testified that appellant touched her breasts many times from when she was eleven or twelve years old until she was fourteen, and that he touched her vagina when she was twelve or thirteen years old. JS was born in 1990. Accordingly, the jury could have determined the State proved the offenses occurred before the presentment of the indictment, and the evidence is therefore sufficient to support the dates alleged in the indictment. The jury in this case weighed the credibility of the witnesses and we are not at liberty to substitute our judgment for the jury's. See Johnson, 23 S.W.3d at 12; Cain, 958 S.W.2d at 407. Viewing all the evidence in a neutral light, the evidence supporting the convictions is not so weak that the jury's determinations are clearly wrong and manifestly unjust, nor does the conflicting evidence so greatly outweigh the evidence supporting the convictions that the jury's determinations are manifestly unjust. See Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414-15, 417. Accordingly, we conclude the evidence is factually sufficient to support the convictions involving JS. We overrule appellant's third issue. Alternate Juror's Participation in Jury Deliberations
In his fourth issue, appellant claims he was entitled to a mistrial because an alternate juror participated in jury deliberations. Background When the jury retired for deliberation at the conclusion of the guilt-innocence portion of the trial, an alternate juror mistakenly retired to the jury room with the rest of the jury. The alternate juror testified at a subsequent hearing that he was with the jury for approximately four minutes before being retrieved by the courtroom bailiff. The alternative juror also noted that the jurors had just introduced themselves by writing their names on the chalk board, and that one of them started "voicing his opinion" on the case. According to the alternate juror, the juror said, "`You know, right now, I can't choose sides.'" The alternate juror also testified: "That's as far as he said, and then the Bailiff pulled me out." The alternate juror claimed no votes were taken during this time, although they selected a jury foreman by acclamation. He testified they reached this decision because the jury had previously decided that whoever was sitting at the end of the table in the jury room when deliberations began would be the foreman. The alternate juror testified that he did not express any opinion regarding the case while he was in the jury room. He also testified that no one took any notes or wrote anything on the chalk board while he was in the jury room, apart from the jurors' names. There was no testimony from any of the jurors who decided the case, and the trial court refused to allow defense counsel to examine the jury foreman. Appellant's trial counsel asked for a mistrial based on the alternate juror's presence in the jury room during deliberations, citing article 36.22 of the Texas Code of Criminal Procedure. After listening to the alternate juror's testimony, the trial court denied the motion. Standard of Review and Applicable Law We review a trial court's ruling on a motion for a mistrial using an abuse of discretion standard, viewing the record in the light most favorable to the trial court's ruling and upholding that ruling if it was within the zone of reasonable disagreement. See Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Stewart v. State, 221 S.W.3d 306, 310 (Tex. App.-Fort Worth 2007, no pet.). A trial court abuses its discretion in denying a motion for a mistrial only when no reasonable view of the record could support the court's ruling. Webb, 232 S.W.3d at 112. For a mistrial to be justified based on juror misconduct, the defendant must prove that (1) misconduct occurred, (2) the misconduct was material, and (3) the misconduct probably caused injury. Bogue v. State, 204 S.W.3d 828, 829 (Tex. App.-Texarkana 2006, pet. ref'd). The Texas Code of Criminal Procedure prohibits any person from being with the jury while it is deliberating or conversing "with a jury about a case on trial except in the presence and by the permission of the court." TEX. CODE CRIM. PROC. ANN. art. 26.22 (Vernon 2006). If a juror does converse with an unauthorized person about the case, injury to the defendant is presumed; however, the State may rebut this presumption of harm by showing the case was not discussed or that nothing prejudicial to the defendant was said. Alba v. State, 905 S.W.2d 581, 587 (Tex. Crim. App. 1995); Robinson v. State, 851 S.W.2d 216, 230 (Tex. Crim. App. 1991); Rojas v. State, 171 S.W.3d 442, 450 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd). In determining whether the State rebutted the presumption of harm, appellate courts should defer to the trial court's resolution of the historical facts and its determinations concerning credibility and demeanor. Quinn v. State, 958 S.W.2d 395, 401 (Tex. Crim. App. 1997) (citing Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997)). Decisions from several appellate courts offer further guidance. In Rojas, for example, the alternate juror was present in the jury room for approximately fifteen minutes. Rojas, 171 S.W.3d at 450. A foreman was selected, evidence was reviewed, and several jurors asked questions about the case, but the alternate juror did not participate in the discussions and no vote was taken. Id. at 450-51. The court of appeals concluded the State rebutted the presumption of harm and a mistrial was inappropriate. In Bogue, the alternate juror spent approximately thirteen minutes with the jury during deliberations, but no votes were taken on the case, a foreman was selected "pretty much by acclamation," and the alternate juror asked a single question about the evidence in the case. Bogue, 204 S.W.3d at 829-30. The court of appeals concluded the alternate juror's presence in the jury room had no effect on the jury and that the State rebutted the presumption of harm. Id. at 830. In Klapensky v. State, 256 S.W.3d 442 (Tex. App.-Austin 2008, pet. ref'd), the alternate juror was present in the jury room for less than five minutes, but no votes were taken during that time and the jury had not yet begun its deliberations. Id. at 452. The court of appeals concluded the appellant was not entitled to a mistrial. Another court of appeals twice concluded that a mistrial was appropriate where alternate jurors participated in deliberations, but in each case the alternate juror did not testify and there was no evidence regarding the extent of the alternate juror's participation in deliberations. See Trinidad v. State, 275 S.W.3d 52, 61 (Tex. App.-San Antonio 2008, pet. granted); Adams v. State, 275 S.W.3d 61, 68 (Tex. App.-San Antonio 2008, pet. granted). Analysis In the present case, appellant argues the State failed to rebut the presumption of harm because only the alternate juror testified, and in both Rojas and Bogue the presiding jurors also testified. Neither decision, however, was based on the presiding juror's testimony, and neither court suggested its decision would have been different had the presiding juror not testified. Instead, the courts focused on whether the evidence showed the alternate juror had any impact on the jury's deliberations. See Bogue, 204 S.W.3d at 830; Rojas, 171 S.W.3d at 450-51. Appellant claims there is no evidence in the record concerning the impact that the alternate juror actually had on the jurors who decided the case, but the alternate juror's testimony established that he was present in the jury room for only four minutes, that he did not participate in deliberations, that he did not cast a vote, and that he did not express any opinion regarding the case. The trial court could have reasonably concluded he had no impact on a jury verdict that was reached almost five hours after he was removed from the jury room. Therefore, we conclude the State successfully rebutted the presumption of harm, and that the trial court did not err in overruling appellant's motion for mistrial. We overrule appellant's fourth issue. We affirm the trial court's judgments.