Opinion issued October 9, 2018




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                            ————————————
                               NO. 01-17-00718-CR
                            ———————————
                    TIMOTHY WAYNE SMITH, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee



                   On Appeal from the 300th District Court
                           Brazoria County, Texas
                       Trial Court Case No. 76916-CR


                        MEMORANDUM OPINION

      A jury convicted appellant Timothy Wayne Smith, of two counts of sexual

assault of a child.1 The jury assessed appellant’s punishment at thirteen years’



1
      See TEX. PENAL CODE ANN. § 22.011(a)(2)(A), (a)(2)(C), (c)(1) (West Supp. 2017).
confinement for each count, and the trial court ordered the sentences to run

consecutively. In his sole point of error, appellant contends that the evidence is

insufficient to support his conviction because the State failed to prove beyond a

reasonable doubt that he committed the charged offense. We affirm.

                                   Background

      In 2011, when S.H. was thirteen years old, she lived with her mother in Lake

Jackson, Texas. Sarah, S.H.’s older sister, and appellant, her husband, lived in

Freeport. Appellant was thirty-one years old at the time.

      During this time, S.H. began spending more time with her sister and appellant

at their house because she could “do things with them that [she] couldn’t do at [her]

own house,” such as “smoke cigarettes, drink, and smoke weed.” S.H. testified that

her conversations with appellant gradually became more personal and included

appellant asking S.H. about her boyfriend and whether she was sexually active.

      One day, while S.H.’s mother was at work, appellant went to S.H.’s house to

install a ceiling fan. Afterwards, appellant and S.H. had sexual intercourse. S.H.

never told anyone about the incident and continued to see appellant without her

sister’s knowledge. Although S.H.’s sister became suspicious and accused appellant

of having an affair with S.H., appellant and S.H. continued their relationship over

the next two years.




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      In December 2014, when S.H. was sixteen years old, she met and became

friends with C.B., who was also sixteen. During this time, S.H. continued to meet

and have sex with appellant, who was then thirty-four years old.

      On December 20, 2014, S.H. and C.B. went to the Brazos mall together. After

work, appellant picked them up from the mall, purchased alcohol, and drove them

to a motel in Freeport where he rented a room. Afterwards, he took them to the

beach located near the motel. After driving around on the beach and drinking,

appellant, S.H., and C.B. returned to the motel where the three continued to drink

the wine and beer that appellant had purchased.         After S.H. and C.B. were

intoxicated, appellant had sexual intercourse with them. S.H. testified that appellant

touched her breasts and vagina with his hands and his penis, and that he put his penis

inside of her vagina and C.B.’s vagina.

      The next morning, appellant drove S.H. and C.B. home.             S.H. became

concerned that C.B.’s parents had learned what had happened and texted appellant

who told her to lie and deny everything. An investigator later came to S.H.’s home

and S.H. provided a statement in which she said that C.B. had lied about what had

happened. S.H testified that she lied because she knew that if her family found out,

“it would change things.”

      Another investigator visited S.H. several months later to obtain a sample of

her DNA. S.H. began crying and provided a revised statement disclosing the full

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extent of her relationship with appellant and stating that her initial statement was a

lie and that C.B. had told the truth about the sexual encounter in Freeport.

      After C.B. returned home from the Freeport motel, her mother, D.B., received

a text from C.B.’s older sister. Believing that C.B. had been assaulted, D.B.

confronted C.B. who became emotionally combative and refused to report the

incident to the police. D.B. eventually convinced C.B. to go to a psychiatric hospital

in Houston for an evaluation.2 Shortly after she arrived at the mental health facility,

C.B. was transported to Texas Children’s Hospital where a sexual assault nurse

examiner (SANE) conducted an examination. D.B. testified that C.B. was no longer

combative and that she appeared ashamed, sad, and scared.

      The SANE report, which was admitted at trial, reflects that C.B. disclosed that

she, S.H., and appellant checked into a motel where all three engaged in sexual

activity, specifically, a “threesome” that S.H. invited C.B. to join. C.B. reported

“oral/oral, oral/genital sexual contact with [S.H.],” and “penile/vaginal sexual

contact with [appellant].”

      Forensic analysis of C.B.’s cellular phone admitted at trial showed that, on

December 21, 2014, at 3:46 a.m., C.B. sent a text message to a third party stating

that she “just had a threesome,” and, at 6:50 p.m., a text message to her older sister


2
      D.B. testified that C.B. suffered from depression and an anxiety disorder and that,
      when she was fourteen or fifteen years old, C.B. was hospitalized in a psychiatric
      facility for cutting herself.
                                           4
stating, “I went to a motel, got shit faced, had a threesome.” C.B.’s sister contacted

their mother and told her that C.B. had been assaulted.

      At trial, C.B. testified that, on December 20, 2014, she and S.H. were at the

mall when appellant picked them up to go to the beach and drink. On the way,

appellant stopped by a convenience store to buy some beer and wine and drove to a

motel. C.B. testified that S.H. had told her that appellant would leave them at the

motel because he probably had to go to work and would pick them up in the morning

and take them home. But appellant, S.H., and C.B. drove around the beach, drank,

and then returned to the motel. Back at the motel, S.H. and C.B. continued to drink

and became intoxicated. C.B. testified that appellant penetrated S.H.’s vagina with

his penis. Appellant then touched C.B.’s breasts, stomach, and vagina with his

hands, penetrated her vagina with his fingers and his penis, and placed his mouth on

her vagina. Afterwards, C.B. pretended to fall asleep.

      The next morning, appellant drove them back to S.H.’s house and S.H.’s mom

later drove C.B. home. When she got home, C.B. texted S.H. that “[she] wasn’t okay

with what happened.” C.B. also told her sister what happened and her sister told

their parents.

      C.B. testified that appellant had a tattoo of his children’s footprints on his

chest and a Texans tattoo on his arm or leg. Over defense counsel’s objection, the

trial court ordered that appellant show his tattoos to the jury during trial.

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                                     Discussion

      In his sole point of error, appellant contends that the evidence is insufficient

to support his conviction because the State failed to prove beyond a reasonable doubt

that he sexually assaulted either C.B. or S.H.

   A. Standard of Review

      We review appellant’s challenge to the sufficiency of the evidence under the

standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979). See

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We examine all of

the evidence in the light most favorable to the jury’s verdict to determine whether

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

beyond a reasonable doubt.” Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2788–89;

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

      The jury may reasonably infer facts from the evidence presented, credit the

witnesses it chooses, disbelieve any or all of the evidence or testimony proffered,

and weigh the evidence as it sees fit. See Canfield v. State, 429 S.W.3d 54, 65 (Tex.

App.—Houston [1st Dist.] 2014, pet. ref’d). An appellate court determines “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). In viewing the

record, direct and circumstantial evidence are treated equally. Id. at 13. An appellate

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court presumes that the factfinder resolved any conflicting inferences in favor of the

verdict and defers to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.

   B. Applicable Law

      A person commits the offense of sexual assault of a child if the person

intentionally or knowingly “causes the penetration of the anus or sexual organ of a

child by any means” who is under the age of seventeen. TEX. PENAL CODE ANN.

§ 22.011(a)(2)(A), (c)(1) (West Supp. 2017). A person also commits sexual assault

of a child if he “causes the sexual organ of a child to contact or penetrate the mouth,

anus, or sexual organ of another person, including the actor.” Id. § 22.011(a)(2)(C).

      Here, Count 1 of the indictment alleged that appellant sexually assaulted C.B.,

a child younger than seventeen years of age, by intentionally or knowingly causing

(1) the penetration of C.B.’s sexual organ by appellant’s sexual organ; (2) the

penetration of C.B.’s sexual organ by appellant’s finger; and (3) C.B.’s sexual organ

to contact appellant’s mouth. Count II alleged that appellant sexually assaulted S.H.,

a child younger than seventeen years of age, by causing S.H.’s sexual organ to

contact appellant’s sexual organ.

      A child sexual assault complainant’s uncorroborated testimony, standing

alone, is sufficient to support a defendant’s conviction. See TEX. CODE CRIM. PROC.

ANN. art. 38.07 (West Supp. 2017) (stating conviction for sexual assault is

supportable on uncorroborated testimony of victim if victim informed any person,

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other than defendant, of offense within year, but requirement does not apply if at

time of alleged offense victim was person seventeen years of age or younger);

Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978) (holding victim’s

testimony of penetration by appellant, standing alone, was sufficient); Jensen v.

State, 66 S.W.3d 528, 534 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d)

(stating testimony of victim, standing alone, was sufficient). The State has no burden

to produce physical or other corroborating evidence. See Jones v. State, 428 S.W.3d

163, 169 (Tex. App.—Houston [1st Dist.] 2014, no pet.). The jury determines the

credibility of the witnesses and may “believe all, some, or none of the testimony.”

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

   C. Analysis

      Appellant contends that the evidence is insufficient to support his conviction

for sexual assault of either S.H. or C.B. because (1) S.H. is a liar; (2) S.H. initially

denied that the sexual assault had occurred; (3) C.B.’s testimony lacked credibility;

and (4) C.B. only learned of appellant’s tattoos from Facebook.

             1. S.H.’s credibility

      At trial, S.H. testified that she initially lied when she told the first investigator

that C.B. had lied about the threesome at the Freeport motel. S.H. explained that she

did not want to tell the truth because she knew that if her family found out, “it would

change things.” After she realized the seriousness of the situation, S.H. later gave a

                                            8
revised statement to another investigator in which she admitted that her initial

statement was a lie and that C.B. had told the truth about the sexual encounter at the

motel.

         It is the exclusive role of the fact finder “to resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences [.]” Buentello v. State, 512

S.W.3d 508, 516 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (quoting Jackson,

443 U.S. at 319, 99 S. Ct. at 2789). We may not “re-evaluate the weight and

credibility of the evidence and substitute our judgment for that of the fact-finder.”

Hernandez. v. State, 268 S.W.3d 176, 179 (Tex. App.—Corpus Christi 2008, no pet.)

(citing Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)). Even

contradictory evidence in the record will not diminish the legal sufficiency of

evidence that otherwise supports the jury’s verdict. Buentello, 512 S.W.3d at 516.

By returning a guilty verdict, we must infer that the jury believed S.H., and we defer

to that determination. See Laster v. State, 275 S.W.3d 512, 525 (Tex. Crim. App.

2009).

         2.    C.B.’s credibility

         Appellant also argues that the evidence is insufficient to support his

conviction because C.B.’s testimony lacked credibility. In particular, appellant

points to C.B.’s testimony that she did not disclose in her statement to police that




                                              9
appellant had penetrated her vaginally or touched her vagina with his fingers or

mouth, and that she told the jury more than she told the SANE.

      To the extent C.B.’s testimony at trial differed from what she told police or

the SANE, this conflict raised issues of credibility and questions of fact. However,

the jury has the inherent power to decide who and what to believe. See Canfield,

429 S.W.3d at 65; Billy v. State, 77 S.W.3d 427, 428 (Tex. App.—Dallas 2002, pet.

ref'd). Further, appellate courts give wide latitude to testimony of sexual abuse given

by child complainants. See Jones v. State, 428 S.W.3d 163, 169 (Tex. App.—

Houston [1st Dist.] 2014, no pet.) Gonzalez Soto v. State, 267 S.W.3d 327, 332 (Tex.

App.—Corpus Christi 2008, no pet.). The child’s description of what happened to

her need not be precise, and she is not expected to express herself at the same level

of sophistication as an adult. See Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim.

App. 1990); see also Buentello, 512 S.W.3d at 516 (concluding that any alleged

deficiencies in child victim’s testimony—such as whether child told forensic

investigator during her interview about penetration or disclosed additional aspects

of assault at trial that she had not previously mentioned—did not diminish legal

sufficiency of her direct trial testimony on issue); Valles v. State, No. 05-17-00164-

CR, 2018 WL 3359072, at *5 (Tex. App.—Dallas July 10, 2018, no pet.) (mem. op.,

not designated for publication) (finding evidence sufficient to support defendant’s




                                          10
convictions for indecency with child and aggravated sexual assault despite fact that

fifteen-year old’s testimony at trial differed from forensic interviewer’s testimony).

      3.     Appellant’s tattoos

      Appellant also asserts that the evidence is insufficient to support his

conviction because C.B. only learned of appellant’s tattoos from Facebook.

Specifically, he argues that although C.B. testified at trial that appellant had tattoos

of his children’s footprints and the Houston Texans logo, she admitted that her

mother showed her pictures of appellant from his Facebook page after the assault.

Appellant’s argument is not supported by the evidence. Contrary to appellant’s

assertion, C.B. testified that she did not see appellant’s tattoos in photos posted on

his Facebook page but, rather, she and her mother only looked at his profile photo

to confirm that appellant was the person who had assaulted her.

      From the complainant’s testimony alone, a rational fact finder could have

determined beyond a reasonable doubt that appellant engaged in sexual activity with

S.H. and C.B., who were younger than seventeen years of age, during which all of

the specified sexual acts occurred. Viewing the evidence in the light most favorable

to the verdict, the evidence is sufficient to support the jury’s finding that appellant

sexually assaulted S.H. and C.B., as charged in the indictment. See Jackson, 443

U.S. at 318–19, 99 S. Ct. at 2788–89; Williams, 235 S.W.3d at 750. We overrule

appellant’s sole point of error.

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                                   Conclusion

      We affirm the trial court’s judgment.




                                              Russell Lloyd
                                              Justice

Panel consists of Justices Keyes, Bland, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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