                                    NUMBERS
                                  13-13-00521-CR
                                  13-13-00522-CR
                                  13-13-00523-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

MICHAEL MANAHAN JR.,                                                      Appellant,


                                          v.


THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 130th District Court
                       of Matagorda County, Texas.


                        MEMORANDUM OPINION
  Before Chief Justice Valdez, and Justices Rodriguez and Longoria
             Memorandum Opinion by Justice Longoria
      By one issue, appellant Michael Manahan Jr. challenges his conviction on one

count of indecency with a child (Count I) and two counts of aggravated sexual assault of
a child (Counts II and III). See TEX. PENAL CODE ANN. §§ 21.11, 22.021 (West, Westlaw

through 2013 3d C.S.). We affirm as modified.

                                            I. BACKGROUND

       B.M., appellant’s adult daughter who was twenty-one years old at the time of trial,

testified that she filed a police report accusing appellant of sexually abusing her

throughout the course of her childhood.1 B.M. testified that when she was approximately

seven years old she began regularly visiting appellant in the trailer where he lived with

her two brothers. She and appellant would sleep together in the top bunk. B.M. testified

that at least twice, appellant removed her pants and rubbed “his penis against my vagina.

He wouldn’t penetrate me.” B.M. also testified that appellant would also take her “into the

bedroom and he would make me do oral sex on him” and that this happened “quite often”

whenever she went to visit. B.M. testified that this abuse continued until she was fourteen

years old and stopped permanently when she first began menstruating around that time.

B.M. told the trial court that she filed the report at the encouragement of her fiancé, after

she revealed the abuse to him because she “felt like he needed to know” before they

married, and out of concern for the welfare of her half-sister, appellant’s daughter, who

was seven year’s old at that time.

       Detective Maria Guajardo of the Bay City Police Department testified that she

investigated B.M.’s allegations.        Detective Guajardo testified that she found B.M.’s

medical records from her birth until she was approximately nine years old and that the

records detailed “questionable vaginal tears and rectal bleeding at a very, very young age

beginning almost at 3 years old.” Guajardo testified that she believed that Child Protective


       1We will use the initials of the two complainants to protect their privacy. See TEX. CODE CRIM.
PROC. ANN. art. 57.02(b) (West, Westlaw through 2013 3d C.S.).

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Services began an investigation when B.M. was approximately three years old but that

the investigation was closed.2 Guajardo further testified that B.M. told her of the possibility

that appellant had abused M.W., the other complainant in this case.

       M.W. testified that she became friends with B.M. when they were both in the sixth

grade and that M.W. would often stay with B.M. at appellant’s residence. During these

visits, M.W. would sleep in the same bed with B.M. and appellant. M.W. testified that

during a road trip to the “mud races,” she and appellant stayed in appellant’s truck while

the rest of appellant’s family went into the store. M.W. told the court that appellant placed

her hand on his crotch area, told her “to rub it like outside of his pants at first,” and then

unzipped his pants, pulled out his penis and told her to masturbate him. M.W. testified

that she complied because she “didn’t want him to hurt me if I didn’t do it.”

       M.W. testified that during the second trip to the mud races, she and appellant went

to a corner store. During the drive, appellant “pulled out his penis and grabbed me, my

hair, and put my head down there” and forced her to perform oral sex while he drove.

Later that same night, appellant took B.M.’s brothers back to their grandmother’s house,

but rented two hotel rooms in town, one for himself and one for B.M. and M.W. M.W.

testified that she woke up later that night when appellant removed the bottom half of her

pajamas, turned her over onto her stomach, and placed his mouth onto her vagina. M.W.

testified that appellant then unzipped his pants and placed his penis on top of her vagina,

but it did not penetrate because she pushed him off. After appellant left, M.W. told B.M.

about what occurred.



       2  B.M. testified that when she was three years old she remembers lying naked on a bed while
appellant and his wife at the time rubbed Vaseline on her and that “it didn’t feel right,” but does not
remember anything else.

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       T.M., appellant’s son, also testified for the State. T.M. told the jury that during one

of B.M.’s visits, when B.M. was approximately eight years old, he approached the door of

appellant’s room to ask him a question. T.M. testified that he witnessed appellant “sitting

on the bed wrapped in a towel with . . . [B.M.] on her knees in front of him.” T.M. testified

that he was able to see this even though the door was closed because a “shim” that was

supposed to be in the gap between the door and the wall of the trailer was missing. T.M.

further testified that he did not fully understand what he saw at the time, but that as an

adult he believes that he saw B.M. “giving . . . [appellant] oral sex.”

       Appellant elected to testify in his own defense. Appellant testified that B.M. would

sleep in the couch’s fold-out bed when she came to visit but that he would frequently

wake up to find her in his bed. Appellant denied that all of the events related by B.M. and

M.W. occurred. Appellant told the trial court that just before B.M. first contacted the police,

he and B.M. had a fight when appellant was unable to loan her $5,000 to add to the down

payment that B.M. and her fiancé were planning to put down on a house. Appellant

testified that he rented a hotel room for B.M. and M.W. because he overheard his son

K.M. say that K.M. would attempt to have sex with M.W. that night.

       The case was tried to a jury, which returned a verdict of guilty on all counts. The

jury assessed punishment at imprisonment for ten years on Count I, forty-five years on

Count II, and twenty-five years on Count III. The trial court ordered that the sentence on

Count II run consecutively to the sentence on Count III. See id. § 3.03(b); TEX. CODE

CRIM. PROC. ANN. art. 42.08(a) (West, Westlaw through 2013 3d C.S.). This appeal

followed.




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                                          II. DISCUSSION

       By one issue, appellant argues that the evidence is legally insufficient to support

the verdict on all three counts.

       A. Standard of Review and Applicable Law

       “The standard for determining whether the evidence is legally sufficient to support

a conviction is ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The trier of fact, in

this case the jury, is the sole judge of the credibility of witnesses and the weight, if any,

to be given to their testimony. Garcia v. State, 367 S.W.3d 684, 686–87 (Tex. Crim. App.

2012); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op). As a

reviewing court, we “may not substitute our judgment for that of the factfinder by

reevaluating the weight and credibility of the evidence. Rather, we defer to the factfinder

to fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable

inferences from basic facts to ultimate facts.” Atkins v. State, 402 S.W.3d 453, 457 (Tex.

App.—Houston [14th Dist.] 2013, pet. ref’d) (citing Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010)). The State may prove the elements of an offense by either direct

or circumstantial evidence, and “circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)

(citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)).




                                             5
       We measure the sufficiency of the evidence supporting a conviction “by the

elements of the offense as defined by the hypothetically correct jury charge for the case,”

applied to the particular facts of the case. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim.

App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). A

hypothetically correct jury charge is “one that accurately sets out the law, is authorized by

the indictment, does not unnecessarily increase the State's burden of proof or

unnecessarily restrict the State's theories of liability, and adequately describes the

particular offense for which the defendant was tried.” Atkins, 402 S.W.3d at 457 (quoting

Malik, 953 S.W.3d at 240).

       By Count I, the State alleged that appellant committed indecency with a child by

causing M.W. to touch appellant’s penis. See TEX. PENAL CODE ANN. § 21.11(a)(1). A

person commits the offense of indecency with a child if he “engages in sexual contact

with the child or causes the child to engage in sexual conduct.” Id. The statute defines

the term as “any touching by a person, including touching through the clothing, of the

anus, breast, or any part of the genitals of a child” or, “any touching of any part of the

body of the child, including touching through the clothing, with the anus, breast or any

part of the genitals of a person,” that is done “with the intent “to arouse or gratify the

sexual desire of any person.” Id. § 21.11(c). The hypothetically correct jury charge for

this offense required the State to prove that appellant (1) with intent to gratify his sexual

desire, (2) caused M.W. to touch his sexual organ. See id.

       By Counts II and III, the State alleged that appellant committed aggravated sexual

assault of a child. See id. § 22.021. The hypothetically correct jury charge for both counts




                                             6
required the State to prove that appellant: (1) intentionally or knowingly; (2) caused his

penis to contact or penetrate B.M.’s vagina (Count II), and contact M.W.’s mouth (Count

III); (3) when both complainants were younger than fourteen. See id.; Ozuna v. State,

199 S.W.3d 601, 606 (Tex. App.—Corpus Christi 2006, no pet.).

         B. Analysis

         Appellant argues that the evidence is insufficient because “there was no medical

evidence of a sexual assault, there was no physical evidence presented identifying

Appellant as the perpetrator, and the record in this cause shows multiple issues regarding

the credibility and reliability of [B.M.] and [M.W.].”   However, it is well-settled that

testimony of a complainant alone “is sufficient to support a conviction for indecency with

a child or aggravated sexual assault” of a child. Cantu v. State, 366 S.W.3d 771, 775

(Tex. App.—Amarillo 2012, pet. ref’d); Soto v. State, 267 S.W.3d 327, 332 (Tex. App.—

Corpus Christi 2008, no pet.). Furthermore, corroboration of the complainant’s testimony

“by medical or physical evidence is not required.” Cantu, 336 S.W.3d at 776; Soto, 267

S.W.3d at 332; Ozuna, 199 S.W.3d at 606; see TEX. CODE CRIM. PROC. ANN. art. 38.07(a)

(West, Westlaw through 2013 3d C.S.) (stating that testimony of complainant alone is

sufficient to sustain a conviction for aggravated sexual assault of a child). The testimony

of B.M. and M.W., detailed above in relevant part, is therefore sufficient to support the

jury’s findings of guilty on Counts I, II, and III. Regarding the alleged “multiple issues

regarding the credibility and reliability” of the testimony of B.M. and M.W., determining

which witnesses and evidence to credit is within the sole province of the jury, and we may

not disturb that determination. See Garcia, 367 S.W.3d at 686–87; Hooper, 214 S.W.3d

at 13.



                                             7
Appellant acknowledges these authorities, but he argues that we should revisit this issue

so that “child witness testimony alone can no longer be sufficient to support” convictions

on these charges but as an intermediate appellate court, “we are duty bound to follow

precedent issued by the Texas Court of Criminal Appeals.” Kiffe v. State, 361 S.W.3d

104, 109 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).3

        Accordingly, we overrule appellant’s sole issue.

        C. Modification

        Our review of the record has revealed a mistake in the judgments of conviction in

cases 13-13-522-CR and 13-13-523-CR. The judgment of conviction in both cases

recites that the charged offense is “aggravated sexual assault,” but under the heading

“Statute for Offense,” each cites section 22.01 of the penal code, which is the provision

involving simple assault. See TEX. PENAL CODE ANN. § 22.01 (West, Westlaw through

2013 3d C.S.). This Court may modify the record to make it speak the truth when we

have the necessary information to do so. French v. State, 830 S.W.2d 607, 609 (Tex.

Crim. App. 1992); see TEX. R. APP. P. 43.2(b). We therefore modify the judgments of

conviction in the cases 13-13-522-CR and 13-13-523-CR to reflect the correct statutory

provision under which appellant was convicted, section 22.021. See TEX. PENAL CODE

ANN. § 22.021.




        3
           Appellant also mentions that M.W. did not “give any specific date for which a jury could rely to
support Appellant’s conviction.” To the extent that appellant is making a separate argument, “[i]t is well
settled that the ‘on or about’ language of an indictment allows the State to prove a date other than the one
alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the
statutory limitation period.” Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997) (en banc).


                                                     8
                                        III. CONCLUSION

       We affirm the judgments of the trial court as modified.




                                                NORA L. LONGORIA
                                                Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
19th day of June, 2014.




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