                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         _________________________

              No. 06-11-00231-CR
        ______________________________


           WILLIAM OWENS, Appellant

                          V.

         THE STATE OF TEXAS, Appellee



    On Appeal from the 5th Judicial District Court
               Bowie County, Texas
           Trial Court No. 10F0132-005




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Carter
                                              OPINION

           William Owens was convicted by a Bowie County jury of sexually assaulting his

daughter, who was four years old at the time of the offense. The jury assessed punishment of life

imprisonment and a fine of $10,000.00. On appeal, Owens alleges the following errors: (1) the

State violated the holding of Brady v. Maryland1 by not providing exculpatory evidence;

(2) Article 38.072 of the Texas Code of Criminal Procedure, which allows testimony of an

outcry witness, was violated; (3) evidence from a nurse who examined the child was not

relevant; (4) reversible error occurred when the investigating officer opined the child-

complainant was truthful in her accusations; and (5) following the child’s recantation of her

allegation, the evidence was not sufficient to support the verdict. After reviewing the record and

applicable law, and considering the arguments of the parties, we find no reversible error and

affirm the trial court’s judgment and sentence.

I.         No Brady Violation

           Owens first claims the trial court erred in refusing to require the State to turn over a file

on another criminal defendant, in an unrelated case, or in failing to conduct an in camera review

of that file. The State is required to provide potentially exculpatory information to the defense.

Brady, 373 U.S. 83; Thomas v. State, 841 S.W.2d 399 (Tex. Crim. App. 1992). The Due Process

Clause of the Fourteenth Amendment to the United States Constitution is violated when a

prosecutor fails to disclose evidence favorable to the accused that creates a probability sufficient

to undermine confidence in the outcome of the proceeding. Thomas, 841 S.W.2d at 404; see

1
    373 U.S. 83 (1963).

                                                    2
Pena v. State, 353 S.W.3d 797, 812 (Tex. Crim. App. 2011).              “Evidence withheld by a

prosecutor is ‘material’ if there is ‘a reasonable probability that, had the evidence been disclosed

to the defense, the outcome of the proceeding would have been different.’” Wyatt v. State, 23

S.W.3d 18, 27 (Tex. Crim. App. 2000) (quoting United States v. Bagley, 473 U.S. 667, 676

(1985)). Further, the information must be disclosed to the accused in time to put it to effective

use at trial. See Palmer v. State, 902 S.W.2d 561, 563 (Tex. App.—Houston [1st Dist.] 1995, no

pet.). This includes disclosure of any favorable information in the possession of police agencies

or other parts of the “prosecutorial team.” Kyles v. Whitley, 514 U.S. 419 (1995). A Brady

violation may also occur when a prosecutor fails to disclose evidence that may impeach the

credibility of a State’s witness where the witness’ credibility is material to the disposition of an

accused’s guilt. Johnston v. State, 917 S.W.2d 135 (Tex. App.—Fort Worth 1996, pet. ref’d).

       Owens’ claim of a Brady violation was based on a statement supposedly made to Owens

by another inmate while Owens was in jail pending trial. Through his attorney, at a pretrial

hearing, Owens claimed Billy Speight, another jail inmate, told Owens that Speight had also

been accused of fondling or inappropriately touching Owens’ daughter.

       The prosecutor responded that she had reviewed the case pending against Speight and

that the alleged victim in the Speight case was a male, and “not the child in this case.” Owens

offered no other evidence or specific argument that the victim in the instant case was also the

victim of Speight’s alleged offense. The trial court opined that the only way such evidence could

be exculpatory as to Owens would be if there was evidence that only one assault occurred, and



                                                 3
the victim in Owens’ case made two allegations, one against Owens and one against Speight. No

such evidence was present here.

       A defendant in a criminal case does not have a general right to discovery of evidence in

the possession of the State. See Scaggs v. State, 18 S.W.3d 277, 294–95 (Tex. App.—Austin

2000, pet. ref’d); Gowan v. State, 927 S.W.2d 246, 249 (Tex. App.—Fort Worth 1996, pet.

ref’d). Limited statutory discovery has been provided. See TEX. CODE CRIM. PROC. ANN. art.

39.14 (West Supp. 2012). The decision about what is discoverable under the statute has long

been committed to the discretion of the trial court. See Whitchurch v. State, 650 S.W.2d 422,

425 (Tex. Crim. App. 1983) (per curiam).

       The trial court, having been presented with nothing that “contradicts or rebuts the

allegations against this defendant,” found no exculpatory evidence existed. We find that Owens

only speculated to the trial court that information or a file on Speight’s charge might be material

to Owens’ case, and the State definitively stated the victims in the two cases were not the same.

       Normally, courts will not order the State to produce information under Brady based upon

a defendant’s speculation that the requested information contains exculpatory evidence. Page v.

State, 7 S.W.3d 202, 206 (Tex. App.—Fort Worth 1999, pet. ref’d); Gowan, 927 S.W.2d at 250

(refusing to make “leap of faith” necessary to assume police file on seven unrelated rapes would

show rape for which defendant charged committed by another assailant). “The mere possibility

that an item of undisclosed information might have helped the defense, or might have affected

the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” United

States v. Agurs, 427 U.S. 97, 109 (1976); see also Hampton v. State, 86 S.W.3d 603, 612 (Tex.

                                                4
Crim. App. 2002). Also, there is no Brady duty to make available to the defendant things about

which he or she is already aware. Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002).

Brady only applies when the defense discovers information that was known to the prosecution

but unknown to the defense. Pena, 353 S.W.3d at 810. Brady does not require the State to

disclose information to defendants that the State does not have in its possession and that is not

known to exist. Id.; see also Hafdahl v. State, 805 S.W.2d 396, 399 n.3 (Tex. Crim. App. 1990).2

           There was no suggestion that anything in the Speight file contained exculpatory or

material evidence regarding the charge pending against Owens. The trial court did not err in not

requiring the State or its agents to produce the Speight file.3 We overrule Owens’ first point of

error.

II.        Outcry Statute Correctly Applied

           In his second and fourth points of error, Owens argues the statute allowing hearsay

testimony from outcry witnesses4 was incorrectly applied. We find no reversible error and

overrule these points.


2
 Nor does Brady require the prosecution to discover information that it does not possess. Goff v. Bagley, 601 F.3d
445, 476 (6th Cir. 2010); see also Pittman v. State, 321 S.W.3d 565, 571–72 (Tex. App.—Houston [14th Dist.]
2010, no pet.) (prosecuting county did not have—at time of trial––information that co-defendant had had sexual
assault charges previously in California––that information came to light after defendant’s trial).
3
 Owens also claims the trial court erred by not conducting an in camera review of the Speight file. While in Owens’
motion for evidence favorable to the defense he did ask for an in camera review of any “possibly exculpatory or
favorable” knowledge or evidence in the possession of any prosecution witness at the hearing before the trial court,
Owens never asked the court to conduct an in camera hearing of the Speight file. However, as there was nothing
suggesting the Speight file contained material or exculpatory evidence, we find the trial court did not err in not
doing an in camera inspection. We further reject Owens’ request to remand the case for an in camera review of the
Speight file.
4
    See TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2012).


                                                         5
        First, Owens claims that Missy Stout Davison, who was allowed to testify as the State’s

designated outcry witness, was not the correct outcry witness. Rather, Owens argues either the

child complainant’s mother or grandmother was the correct outcry witness.                             The child

complainant, Julie,5 said that she initially told her grandmother and mother that Owens had

touched and hurt her. Julie, though, testified she did not tell her family members details of the

sexual assault; she said she told details to Davison.

        In child sexual abuse cases, Article 38.072, Section 2 of the Texas Code of Criminal

Procedure provides for the admission of hearsay statements describing the offense that are made

by the child victim, who is fourteen years or younger, to the first person eighteen years or older.

TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a). To qualify as a proper outcry statement, the

child must have described the alleged offense in some discernible way and must have more than

generally insinuated that sexual abuse occurred. Broderick v. State, 35 S.W.3d 67, 73 (Tex.

App.––Texarkana 2000, pet. ref’d). The proper outcry witness is the first person to whom the

child described the offense in some discernible manner. Garcia v. State, 792 S.W.2d 88, 91

(Tex. Crim. App. 1990) (outcry must be more than general allusion of sexual abuse).6

        We review the trial court’s decision to admit testimony from an outcry witness for an

abuse of discretion. Tear v. State, 74 S.W.3d 555, 558 (Tex. App.––Dallas 2002, pet. ref’d);


5
 The State’s indictment used the pseudonym Julie Mae for the child complainant; we will shorten the pseudonym to
Julie.
6
 The proper outcry witness is not to be determined by comparing the statements the child gave to different
individuals and then deciding which person received the most detailed statement about the offense. Thomas v. State,
1 S.W.3d 138 (Tex. App.––Texarkana 1999, pet. ref’d); see also Reed v. State, 974 S.W.2d 838, 841 (Tex. App.––
San Antonio 1998, pet. ref’d).

                                                        6
Sims v. State, 12 S.W.3d 499, 500 (Tex. App.—Dallas 1999, pet. ref’d) (trial court has broad

discretion in deciding proper outcry witness); see Weatherred v. State, 15 S.W.3d 540, 542 (Tex.

Crim. App. 2000). We will not reverse on appeal unless the trial court’s decision is outside the

zone of reasonable disagreement. Divine v. State, 122 S.W.3d 414, 420 (Tex. App.––Texarkana

2003, pet. ref’d). Owens claims Davison was not the proper outcry witness because the child

made statements to her mother and grandmother. But the child testified that she did not tell her

mother and grandmother where Owens had touched her––she did tell that information to

Davison. Julie said she just told her family members that Owens had hurt her. Nora Mitchell,

Julie’s caretaker who, by the time of trial, was the conservator of the child, said the mother and

grandmother asked Mitchell what Owens had done: “[T]hey [mother and grandmother] didn’t

know what he had done.” This supports Julie’s statement she had not given details to those

family members.

       There was nothing in the record indicating that the child told specifics of the abuse to

anyone before Davison; the child specifically testified that she had not told details to her family

members, but did tell Davison. Additionally, investigating officer Gisela Looney said she had

not interviewed the child’s mother because the mother had no pertinent information. There was

no abuse of discretion for the trial court to find that Davison was the proper outcry witness.

III.   State’s Outcry Notice Was Sufficient

       In his fourth point of error, Owens complains the pretrial notice given by the State was

improper or inadequate.     In order to invoke the statutory exception to the prohibition on

admitting hearsay, the State must notify the defendant of its intent to offer the evidence, provide

                                                 7
the name of the outcry witness, and provide a summary of the statement. TEX. CODE CRIM.

PROC. ANN. art. 38.072, § 2(b)(1). The purpose of these requirements is to avoid surprising the

defendant with the introduction of outcry hearsay testimony. See Gay v. State, 981 S.W.2d 864,

866 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). To achieve this purpose, the written

summary must give the defendant adequate notice of the content and scope of the outcry

testimony. Davidson v. State, 80 S.W.3d 132, 136 (Tex. App.—Texarkana 2002, pet. ref’d).

The notice is sufficient if it reasonably informs the defendant of the essential facts related in the

outcry statement. Id.

         Owens’ complaint is two-fold: first, the State filed a notice which listed Owens’ last

name as Hudson; second, the summary of the proposed outcry witness’ testimony––that the child

said Owens put his fingers in the child’s vagina––was unclear as to whose fingers were then

moved.

         The State’s first notice, filed on May 16, 2011, said the State would call Missy Stout (the

first reference to the witness did not include her married name) to testify the child told “Missy

Stout Davison that William Owens Hudson had inserted his finger in her ‘tutu’, meaning her

vagina and moved her fingers in a circular motion.” (Emphasis added.) The next day, the State

filed another notice, dropping the “Hudson,” but keeping the same language regarding movement

of fingers. The inaccuracy of the witness’ name was cured.

         Owens argues that the wording of the notice was unclear as to whose fingers allegedly

were moved during the offense. First, it is possible to read the notice as saying Davison would

testify that Julie told Davison the defendant put his finger in Julie’s vagina, and Julie then

                                                  8
showed Davison how he moved his finger: i.e., “Owens had inserted his finger in [Julie’s] . . .

vagina and [Julie] moved her fingers in a circular motion,” demonstrating the movement to

Davison. Davison testified to the jury, “I believe actually her wording was he spinned [sic] his

finger in her tutu . . . if I recall, with the doll, she -- she showed or maybe with her hand she

showed how that actually happened.” The child testified at trial Owens moved his finger around

in her tutu, and it hurt.

        Second, the notice describes a completed offense by informing Owens the proposed

outcry witness would testify the child told her that Owens digitally penetrated her (the child).

This is the offense for which Owens was indicted, and if proved beyond a reasonable doubt,

would constitute the offense of aggravated sexual assault.7 Notice of an outcry witness must

give the defendant adequate notice of the content and scope of the outcry testimony. Id. The

notice is sufficient if it reasonably informs the defendant of the essential facts related in the

outcry statement. Id. This is not a situation where the trial testimony of the outcry witness

exceeds the scope of the pretrial outcry notice.8 We find that because the notice described the

offensive conduct which corresponded with the outcry witness’ testimony, it was sufficient to

comply with the statute.



7
 See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (West Supp. 2012) (offense consists of intentional or knowing
penetration of child’s sexual organ by any means).
8
 See, e.g., Wheeler v. State, 79 S.W.3d 78, 84 (Tex. App.—Beaumont 2002, no pet.) (holding trial court erred in
admitting testimony not described in Article 38.072 notice); Gay, 981 S.W.2d at 866; Biggs v. State, 921 S.W.2d
282, 285 (Tex. App.––Houston [1st Dist.] 1995) (Texas Court of Criminal Appeals granted discretionary review in
Biggs without issuing written opinion, vacated court of appeals’ judgment, and remanded case to lower court to
conduct factual sufficiency review. See Biggs v. State, No. 01-93-01008-CR, 1997 Tex. App. LEXIS 5640, at *1
(Tex. App.––Houston [1st Dist.] Oct. 30, 1997, pet. ref’d) (not designated for publication)).

                                                      9
        Even if the notice was found insufficient to meet the requirements of Article 38.072,

Owens made no claim to the trial court that he was surprised by any difference in the written

notice and the testimony offered at the 38.072 hearing or at trial. Any error in the substance of

an outcry notice is harmless where there is no indication the defendant was surprised by the

outcry testimony. See Zarco v. State, 210 S.W.3d 816, 832–33 (Tex. App.—Houston [14th

Dist.] 2006, no pet.).

        There is no showing that Owens was surprised by the State’s outcry witness testimony, or

that he was denied notice of the State’s intent to present such evidence or a summary of that

evidence. We overrule the fourth point of error.

IV.     Testimony of Sexual Assault Nurse Examiner

        The State presented sexual assault nurse examiner (SANE) Kathy Lach, who examined

Julie during the course of the State’s investigation. Lach said that she found no physical

evidence of trauma to confirm Julie’s allegation and that such an absence of findings is common.

Owens complained this evidence was not relevant and should have been excluded and makes that

argument on appeal. The trial court overruled Owens’ objection and allowed the testimony. We

find no error.9

        “An appellate court may not disturb a trial court’s evidentiary ruling absent an abuse of

discretion. In other words, as long as the trial court’s decision was within the zone of reasonable

disagreement and was correct under any theory of law applicable to the case, it must be upheld.”


9
 Owens does not argue that Lach’s testimony should have been excluded because it was hearsay. We will therefore
not discuss the hearsay exception for medical diagnosis or treatment that generally applies in this circumstance. See
TEX. R. EVID. 803(4).

                                                        10
Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). Owens claims Lach’s

testimony was not relevant, and thus the trial court abused its discretion in admitting it.

Evidence is “relevant” if it has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence.” TEX. R. EVID. 401. “All relevant evidence is admissible, except as

otherwise provided by . . . these rules. . . . Evidence which is not relevant is inadmissible.” TEX.

R. EVID. 402. If there was any correct theory under which the evidence could have been

admitted, we will uphold the trial court’s ruling. McDuff v. State, 939 S.W.2d 607, 619 (Tex.

Crim. App. 1997).

        Lach told the jury she conducted a sexual assault examination of Julie and found no

evidence of injury or medical trauma. Lach said about ninety percent of the time, on sexual

assault examinations, no trauma is found. She also said that because she was examining Julie

more than ninety-six hours after the alleged assault, Lach did not expect to find evidence of

trauma.10 Other than looking for evidence of injury or trauma, another reason for conducting the

examination, said Lach, was to reassure the child that they were okay, that they would be

“normal” after the abusive events: “[W]e are there to reassure the child and let them know that

their body is okay.” She also said some children harm themselves after a sexual assault, and the

examination allows a medical person to check for any self-inflicted injuries.



10
  The exact date of the alleged abuse cannot be determined from the record. It appears the child made the initial
complaint to her grandmother or mother in March 2008; Davison interviewed the child on March 27. The
investigating police officer began working on the case about April 8, and the sexual assault examination was
conducted on April 15.

                                                       11
         Other considerations qualify Lach’s testimony as relevant: the State could have produced

Lach’s testimony to describe the investigation. The investigating police officer, Looney, had

already testified that she arranged the sexual assault examination; the presence of physical or

DNA evidence was “case by case,” and there could be injuries in instances of digital penetration.

Davison, the forensic interviewer, also said that ninety percent of such cases reveal no physical

injury or medical trauma. Lach was deemed an expert in sexual abuse examinations, and so her

expert testimony could be helpful to the jury. See TEX. R. EVID. 702; Kelly v. State, 824 S.W.2d

568, 572 (Tex. Crim. App. 1992). Lach’s testimony could have been useful to the jury to

elucidate the testimony of Looney and Davison, as well as explain why physical evidence would

not necessarily be present on the body of a sexual assault complainant.

         Owens cites Salinas v. State, 166 S.W.3d 368 (Tex. App.—Fort Worth 2005, pet. ref’d),

where the reviewing court found error in admission of a pediatrician’s testimony that she

diagnosed sexual abuse based on the history given by the child, describing the abuse. The

doctor11 found no physical evidence of the digital anal penetration described by the child, but

concluded the child was sexually assaulted based entirely on the child’s report. The Salinas

court found this testimony essentially vouched for the child’s credibility and truthfulness. While

the doctor “could legitimately testify that she found no evidence of sexual abuse,” it was an

abuse of discretion to allow her to testify to her diagnosis of sexual abuse based only on the

child’s history. Id. at 371. Here, Lach merely reported the events of the examination and her

11
 The doctor did not examine the child until four and a half months after the report of abuse, although this factor did
not enter into the reviewing court’s analysis. Salinas, 166 S.W.3d at 371–72. The Salinas court found the error
harmless. Id. at 372.


                                                         12
clinical findings; she did not offer an opinion as to whether the child had been sexually assaulted

and did not comment on the child’s ultimate credibility or veracity, as occurred in Salinas. Cf.

Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997); Yount v. State, 872 S.W.2d 706, 708

(Tex. Crim. App. 1993).

            Owens also argues that Lach’s testimony improperly bolstered Julie’s testimony.

Although Julie had not yet testified at the time of Lach’s testimony, in opening argument both

the State and defense alluded to Julie’s having recanted her initial allegation. Prior to Lach

taking the stand, Davison had testified to Julie’s description of the sexual assault, and Lach’s

testimony corroborated the allegations.                Relevant evidence does not constitute improper

bolstering simply because it corroborates testimony of an earlier witness. Cohn v. State, 849

S.W.2d 817, 820 (Tex. Crim. App. 1993). Admission of Lach’s testimony was within the zone

of reasonable disagreement, and hence the trial court did not err in allowing it.

V.          Instruction to Disregard Cured Officer’s Testimony

            When Officer Looney testified, she was asked by the State to explain her procedure for

securing an arrest warrant. In the course of her answer, Looney stated she believed Julie had

been telling the truth in her allegation, and this belief led to police securing a warrant for Owens’

arrest. Owens objected to Looney impermissibly testifying to the complainant’s truthfulness;12

the trial court overruled Owens’ request for a mistrial and instructed the jury to disregard

Looney’s statement.




12
     See Schutz, 957 S.W.2d at 59; Yount, 872 S.W.2d at 708.

                                                          13
            In answer to the prosecutor’s question about how Looney procures an arrest warrant,

Looney testified,

            We have to list the details that fit that particular crime, which was aggravated
            sexual assault, that we had the elements. We did it based on the child -- because
            Mr. Owens could not be located and the roommate wasn’t cooperative, all I had to
            go on at the time was based on her interview and her SANE exam and what she
            told the SANE nurse.
                    And for a four-year-old, in my experience, as detailed as she was and
            advanced as she was for her age, we felt that she was telling the truth, so we got a
            warrant.

Owens objected and moved for a mistrial. The trial court denied this request13 and instructed the

jury to disregard the testimony.14 The trial court thought that the error was curable with an

instruction to disregard and that Looney’s statement had not “interject[ed] anything unduly

prejudicial to the jury because I think that it’s reasonable to assume, and most people do, that an

investigating officer believes the victim during the course of the investigation.”                                 Owens

acknowledges an instruction to disregard improper evidence is usually a sufficient remedy, but

he also points out such situations are determined on a case by case basis. He argues the trial

court’s instruction was not sufficient here because the “State’s entire case against Owens was

based upon victim’s testimony that Owens had touched and penetrated her vagina with Owens’

13
 Owens does not complain of the denial of a mistrial; his appellate complaint is that Looney’s testimony
impermissibly bolstered Julie’s accusation.
14
     The instruction was:

            Ladies and gentlemen, prior to the break, you heard a statement from the witness to the effect that
            she believed the child was telling the truth. It doesn’t matter what the witness or anyone else
            thinks about whether they believe the child was telling the truth. What matters is what you
            believe.
                     You twelve jurors and one alternate are the sole and exclusive judges of the credibility of
            the witnesses and the weight to be given to their testimony. So I’m going to instruct you to
            disregard the statement and give it no weight or consideration in your deliberations.

                                                            14
finger,” and she recanted that allegation in her testimony (the recantation is the subject of the

final point of error, below).

         Owens claims Looney’s statement unfairly bolstered the State’s case. We generally

presume the jury follows the trial court’s instructions. Gamboa v. State, 296 S.W.3d 574, 580

(Tex. Crim. App. 2009).             When evaluating the effectiveness of a curative instruction to

disregard, we look to “the nature of the [improper comment]; the persistence of the prosecutor;

the flagrancy of the violation; the particular instruction given; the weight of the incriminating

evidence; and the harm to the accused as measured by the severity of the sentence.” Searcy v.

State, 231 S.W.3d 539, 549 n.10 (Tex. App.—Texarkana 2007, pet. ref’d) (quoting Roberson v.

State, 100 S.W.3d 36, 41 (Tex. App.—Waco 2002, pet. ref’d)). Here, there was no indication the

State purposefully elicited Looney’s statement, and the State did not revisit the comment in its

questioning of Looney or in argument.15 The trial court expressly told the jury that it was to

disregard the statement and that its determination of the facts of the case was paramount. Except

in extreme cases where it appears that the evidence is clearly calculated to inflame the minds of

the jury and where the conduct is of such a character as to suggest the impossibility of

withdrawing the impression produced on the jurors’ minds, a prompt instruction to disregard will

ordinarily cure any error. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (per

curiam); Livingston v. State, 739 S.W.2d 311 (Tex. Crim. App. 1987). We find the trial court’s




15
  With the jury excused, the prosecutor told the trial court that she in “no way” had been trying to elicit Looney’s
statement that she felt Julie was telling the truth; rather, she had been seeking to elicit testimony about obtaining the
warrant for Owens.

                                                           15
instruction effective to cure the impermissible testimony. We overrule Owens’ fifth point of

error.

VI.      Conflicting Statements by Victim

         Owens urges that the victim recanted her testimony on cross-examination, which

rendered the evidence legally insufficient to support the conviction. We disagree and overrule

the sixth point of error.

         On direct examination, Julie, who was eight at the time of the trial, said that in March

2008, when she was four, she did not live with her father, Owens, but visited him. She said that

Owens touched her “tutu,” her “private area,” with his finger. He moved his finger inside her

“tutu” and it hurt. It is not clear with whom Julie lived at that time, but subsequent to this event

she lived with Nora Mitchell, a woman who testified at trial that she had “custody” of Julie and

her brother. Julie said that when she lived with Mitchell, she was no longer afraid of Owens and

that circumstance led her to say the abuse had not happened. She testified that she said this

because she “didn’t want [Owens’] family to be mad at” her and that she was afraid Owens

would be sent to jail. After acknowledging this, Julie again told the jury that Owens had touched

her inside her “tutu” and that it “hurt.”

         On cross-examination, counsel asked Julie if she told Miss Missy that this happened in

the bedroom when she was unclothed, but told “Nana” that it occurred when she was taking a

bath “and that’s when Daddy touched you.” Julie agreed. Julie testified that her statement to

Nana that it happened while in the bathroom was not true. Julie was asked if, after she went to

live with Miss Nora, she could tell her the truth. The following occurred:

                                                16
              Q.      [By defense counsel] And the truth is, is that this didn’t happen, did it?

              A.      [By Julie] (No response.)

              Q.      It’s okay, Sweetheart.

              A.      No, sir.

             Q.      You told Miss Nora that you told that story because your mama
       and Nana told you you had to tell that story, didn’t you?

              A.      Yes, sir.

              Q.      You didn’t want to tell that story anymore, did you?

              A.      No, sir.

              Q.      Because that story wasn’t true, was it?

              A.      No, sir.

On redirect examination, Julie again said the version she had told Davison––that Owens touched

her––was “what happened.” When the prosecutor asked Julie about the questions and answers

on cross-examination, Julie said “they” wanted her to tell a version of the story where the

touching occurred in a bathtub.      From the context of the questions on cross- and direct

examinations, it appears “they” refers to Julie’s mother and grandmother.

       It is not readily apparent from the questions asked and from Julie’s answers if, when she

answered “no” to the question “that story wasn’t true, was it,” whether the “story” referred to

was the place of the occurrence of the assault (bedroom v. bathroom) or whether she was

answering that no assault took place––particularly given the back and forth redirect and cross-

examination where she continued to state that the assault occurred, but that this “story” was


                                                17
wrong. At most, this is a conflict in the child’s testimony. In a legal sufficiency review, 16 we

must defer to the jury’s ability to resolve conflicts in testimony, weigh the evidence, and draw

reasonable inferences from the evidence. Hooper, 214 S.W.3d at 13. Owens acknowledges the

jury may believe or disbelieve all or part of any witness’ testimony, but he directs us to the

following:

         Rational jurors may not utterly disregard undisputed evidence without a sensible
         basis for thinking it unreliable any more than they may simply assume a critical
         part of the proof without evidence having an inclination to confirm it. [Saunders
         v. State,] 817 S.W.2d 688, 692 (Tex. Crim. App. 1991).

         It is true that Julie at one time recanted her allegation; she also offered reasons for that

recantation and context for when the recanting statement was initially made.                             As for the

conflicting testimony in court, her final testimony was clearly that the abuse did in fact occur.

The fact that a witness makes contradictory or inconsistent statements does not destroy his or her

testimony as a matter of law. McDonald v. State, 462 S.W.2d 40, 41 (Tex. Crim. App. 1970)

(evidence legally sufficient to support aggravated assault conviction based on prosecuting

witness’ testimony even though testimony inconsistent); Reed v. State, 991 S.W.2d 354, 360

(Tex. App.—Corpus Christi 1999, pet. ref’d) (evidence legally and factually sufficient to support


16
  In evaluating the legal sufficiency of the charged offense, we review all the evidence in the light most favorable to
the trial court’s judgment to determine whether any rational jury could have found the essential elements of the
crime beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet.
ref’d). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d
at 917–18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while
giving deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).
Legal sufficiency is measured by the elements of the offense as defined by a hypothetically correct jury charge.
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

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aggravated sexual assault of child conviction based on victim’s testimony even though testimony

contradictory). The weight to be given contradictory testimonial evidence is within the sole

province of the jury because it turns on an evaluation of credibility and demeanor. See Muniz v.

State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Reed, 991 S.W.2d at 360. As fact-finder,

the jury is entitled to judge not only the credibility of each witness, but to accept some portions

of a witness’ testimony and reject other portions. See Hughes v. State, 897 S.W.2d 285, 289

(Tex. Crim. App. 1994).

       In addition to Julie’s testimony, Davison testified, as the outcry witness, that Julie told

Davison that Owens touched Julie inside her vagina with his finger. Julie told Davison the

touching hurt and she was crying when it occurred. Davison said the child was consistent in the

details she gave about the abusive contact and demonstrated on anatomically correct drawings

that her “tutu” referred to her vagina. SANE Lach also testified that Julie told her that Owens

touched her inside her vagina with his finger. Davison and Lach both testified that in about

ninety percent of sexual assault medical examinations, no physical evidence of the assault is

detected.

       We defer to the jury’s resolution of the conflict in Julie’s testimony. A child victim’s

testimony is sufficient to support a conviction for sexual assault. TEX. CODE CRIM. PROC. ANN.

art. 38.07 (West Supp. 2012); Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel

Op.] 1978). Considering the record as a whole, we find the evidence sufficient to support the

jury’s verdict. We overrule the sixth point of error.



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      We affirm the judgment of the trial court.




                                           Jack Carter
                                           Justice

Date Submitted:      August 2, 2012
Date Decided:        September 19, 2012

Publish




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