                                     NO. 07-06-0063-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL D

                                   SEPTEMBER 11, 2006

                           ______________________________

                                    DARRELL HARPER,

                                                                   Appellant

                                               v.

                                  THE STATE OF TEXAS,

                                                       Appellee
                         _________________________________

              FROM THE 100TH DISTRICT COURT OF DONLEY COUNTY;

                    NO. 3376; HON. DAVID M. MCCOY, PRESIDING
                         _______________________________

                                Memorandum Opinion
                          _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       Darrell Harper appeals his conviction for sexual assault in one issue. Through the

latter, he contends that the trial court abused its discretion in allowing his 17-year-old victim

to testify because she allegedly was incompetent. The victim suffered from mental

retardation. We affirm the judgment.

       Normally, witnesses are presumed competent to testify. Upton v. State, 894 S.W.2d

426, 429 (Tex. App.–Amarillo 1995, pet. ref’d). However, those who do not “possess
sufficient intellect to relate transactions with respect to which they are interrogated” are

incompetent and may not testify. TEX . R. EVID . 601(a)(2). And, whether the latter rule

encompasses a particular witness lies within the discretion of the trial court. Watson v.

State, 596 S.W.2d 867, 871 (Tex. Crim. App. 1980); Reyna v. State, 797 S.W.2d 189, 191

(Tex. App.–Corpus Christi 1990, no pet.). In making its determination, the trial court

considers the witness’ 1) ability to intelligently observe, recollect, and narrate the events

and 2) the moral responsibility to tell the truth. Upton v. State, 894 S.W.2d at 429. Finally,

it must be remembered that mental retardation alone is not a reason for finding one

incompetent. Beavers v. State, 634 S.W.2d 893, 897 (Tex. App.–Houston [1st Dist.] 1982,

pet. ref’d).

       According to the evidence garnered by the trial court via an in camera hearing, the

victim was 17 years old at the time of trial and had an IQ between 44 and 54. She also

knew her name, age, where she went to school, the grade she was in, the names of her

teachers, the names of her father and stepmother, and the names and ages of her

stepbrothers and stepsister. So too did she know appellant and related the general act he

committed upon her. In her dialogue with the trial court, the young lady also indicated that

she knew what it meant to tell a lie, the adverse consequence arising from lying, and the

need to be truthful. Indeed, she accurately distinguished statements uttered to her by the

trial judge as truths or lies. Additional evidence further illustrated that she held a job at a

local grocery store.

       Admittedly, other evidence considered by the trial court depicted instances of

inconsistency in her recollections. Yet, like mental retardation, inconsistencies in testimony



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did not automatically render her incompetent. See Upton v. State, 894 S.W.2d at 429

(stating that inconsistencies or conflicts within the testimony do not automatically render

the witness incompetent). They merely reflected upon her credibility. Id.

       In short, there was and is evidence of record upon which the trial court reasonably

could have held that the victim was competent to testify. In other words, its decision fell

within the zone of reasonable disagreement. Consequently, it did not err in holding as it

did. See Reyna v. State, 797 S.W.2d at 191 (finding the witness competent to testify when

she indicated she knew the difference between the truth and a lie, she was able to testify

to her full name, age, the names of her brothers and sister, the difference between a boy

doll and a girl doll, and she was able to identify her uncle as the man who put her hands

on his genitals).

       The issue is overruled, and the judgment of the trial court is affirmed.



                                                 Brian Quinn
                                                 Chief Justice



Do not publish.




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