Affirmed; Memorandum Opinion filed December 20, 2012 Withdrawn, and
Substitute Memorandum Opinion filed January 31, 2013.




                                       In The


                     Fourteenth Court of Appeals

                               NO. 14-11-00573-CR



                        REUBEN COLBERT, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee


                   On Appeal from the 232nd District Court
                           Harris County, Texas
                       Trial Court Cause No. 1264286


            SUBSTITUTE MEMORANDUM OPINION1


      1
          We withdraw our memorandum opinion issued December 20, 2012, and issue this
opinion in its place.
      Appellant Reuben Colbert appeals his conviction for aggravated sexual
assault of a child, challenging the sufficiency of the evidence to support his
conviction and asserting harm and violation of his due-process rights through the
admission of allegedly improper impeachment testimony offered by the State
against its own witness. We affirm.

                             FACTUAL AND PROCEDURAL BACKGROUND

      Appellant was charged by indictment with the offense of aggravated sexual
assault of a child, Sara,2 a twelve-year-old girl. Sara told her mother that appellant,
an adult, had sexual intercourse with her at a relative’s home as friends and family
members were helping the relative move to a new home. Sara’s mother notified
authorities.      Investigating officers referred Sara to the Children’s Assessment
Center, where Sara underwent a sexual-assault examination and talked with
counselors about the incident.             Appellant pleaded “not guilty” to the charged
offense.

      At trial, Sara testified that during the summer of 2009, she, appellant, and
others were helping a relative move into a new home. According to Sara, during
the move, appellant spoke with her and inquired about her virginity. Sara claimed
to have been attracted to him, and eventually the two laid next to each other in a
bedroom while the move took place. According to Sara, other minors, including
her sister, were asleep in the same room at the time. Sara testified that she and
appellant began to kiss after first “cuddling” together and chatting on the bedroom
floor. Sara testified that she straddled appellant and began to “grind” on him; the
two then disrobed and continued kissing as appellant retrieved a condom. Sara
testified that appellant had sexual intercourse with her while she straddled him for
      2
          To protect the privacy of the complainant in this case, we identify her by a pseudonym, “Sara.”
                                                    2
nearly five minutes. She testified that appellant placed his penis inside of her
“private area,” which she described as her female sexual organ, and she moved her
body up and down.

          Sara testified that the conduct occurred while the others in the room were
sleeping, and the conduct ceased when Sara’s sister awoke; Sara pretended to be
asleep when her sister called for her. Sara claimed that she and appellant got
dressed after Sara’s sister left the room. When family members asked Sara about
the incident in the weeks to follow, Sara at first denied having engaged in sexual
intercourse with appellant. Sara later told her mother and an aunt that, during the
move, she and appellant had sexual intercourse.

          At trial, Matt,3 appellant’s nephew and also Sara’s fifteen-year-old cousin,
testified that he also helped the relative move. According to Matt, through a crack
in a bedroom door, he was able to observe Sara and appellant together on the floor
in a bedroom. Although Matt testified that he observed Sara, wearing a sports bra,
on top of the appellant, Matt denied having seen the two engage in sexual conduct.
When asked about prior statements that he had made to investigators and other
adults following the incident, Matt denied having expressed any belief that
appellant and Sara had engaged in sexual intercourse.                              Matt reported to
investigators that Sara had a condom in her hand on the morning after the move,
but Matt testified at trial that the condom was unopened and appellant was no
longer at the home at that time. Matt admitted to being related to both Sara and
appellant, and denied that family members pressured him to avoid testifying in the
case.


          3
              To protect the privacy of the juvenile witness in this case, we identify him by a pseudonym,
“Matt.”
                                                      3
        The State called Mark,4 Matt’s father, to testify for the purpose of
impeaching Matt’s testimony.                 According to Mark, Matt stated that he had
observed Sara and appellant engaging in sexual intercourse during the move. Mark
testified that he accompanied Matt to an interview with prosecutors related to the
underlying case. Mark confirmed that during the interview Matt told prosecutors
that Sara was not wearing a shirt and that he observed Sara on top of appellant.
Mark confirmed that in the interview Matt explained to the prosecutors that Sara
and appellant were under covers and that he observed the covers moving up and
down.        Mark confirmed that Matt told prosecutors he believed the two were
engaging in sexual intercourse because the covers slid off of Sara and he saw her
moving up and down on top of appellant.                      Mark confirmed that Matt told
prosecutors that he found condom packages the next morning and believed that
Sara and appellant had engaged in sexual intercourse. Mark confirmed that Matt
told prosecutors that he had been getting a lot of pressure from his mother,
appellant’s sister, to change his “story.”

        The investigating officer also testified and had taken statements from Sara
and Sara’s mother. A video recording of Sara’s interview with the investigating
officer was admitted into evidence.                  As reflected in the video, Sara told the
investigating officer that she had engaged in sexual intercourse with appellant,
describing the sexual conduct with specific detail. The investigating officer also
spoke with Matt, who claimed to have observed appellant and Sara engaging in
sexual intercourse. According to the investigating officer, Matt’s observations and
account were consistent with Sara’s account of the incident.



        4
            Mark is a pseudonym for Matt’s father.
                                                     4
      The doctor who conducted the sexual-assault examination of Sara also
testified and recalled Sara’s admission that she had engaged in sexual intercourse
with appellant. Sara explained to the doctor that appellant placed his “private” in
her “private area” and that appellant wore a condom. The doctor testified that she
examined Sara about four weeks after the incident occurred and that because of the
time that had passed, the results from the physical exam were not a basis to either
rule out or confirm the possibility of sexual abuse or penetration.

      Appellant called Sara’s thirteen-year-old sister to testify. The sister claimed
to have been in the same room as Sara on the night of the move. The sister denied
seeing Sara and appellant alone and claimed that Sara had a reputation for not
telling the truth. Matt’s mother also testified and claimed that Matt did not tell the
investigating officer that appellant had sex with Sara.

      The jury found appellant guilty of the charged offense.            During the
punishment phase, appellant testified and denied engaging in sexual conduct with
Sara. Appellant was sentenced to nine years’ confinement and now appeals his
conviction.

                          SUFFICIENCY OF THE EVIDENCE

      In appellant’s first point of error, he contends the evidence is insufficient to
support his conviction.     In evaluating a challenge to the sufficiency of the
evidence, we view the evidence in the light most favorable to the verdict.
Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on
appeal is not whether we, as a court, believe the State’s evidence or believe that
appellant’s evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d
137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is
irrational or unsupported by proof beyond a reasonable doubt. Matson v. State,
                                          5
819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact “is the sole judge
of the credibility of the witnesses and of the strength of the evidence.” Fuentes v.
State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose
to believe or disbelieve any portion of the witnesses’ testimony. Sharp v. State,
707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting
evidence, we presume the trier of fact resolved conflicts in favor of the prevailing
party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614
(Tex. Crim. App. 1997).

      The indictment alleged that, on or about July 25, 2009, appellant
intentionally and knowingly caused the penetration of the female sexual organ of
Sara, a person younger than fourteen years of age, by placing his sexual organ in
the female sexual organ of the complainant. A person commits the offense of
aggravated sexual assault of a child if the person intentionally or knowingly (1)
causes the penetration of the anus or sexual organ of a child, under the age of
fourteen, by any means, or (2) causes the sexual organ of a child, under the age of
fourteen, to contact or penetrate the mouth, anus, or sexual organ of another
person, including the actor. See Tex. Penal Code Ann. §§ 22.021(a)(1)(B)(i),
(B)(iii), (a)(2)(B) (West 2011).

      Appellant asserts that there was no credible evidence of penetration, a
necessary element of the charged offense. The record reflects Sara’s testimony
that appellant placed his penis “inside” of her “private area,” which she confirmed
was her female sexual organ. She testified that she was twelve years old at the
time of the incident. Sara explained that she straddled appellant and moved her
body up and down as his penis was inside her. The recorded video interview,
                                         6
which was admitted into evidence, reflects Sara’s description to the investigating
officer as to how appellant placed his penis, which she referred to as “his private
area,” in her vagina. Sara informed her mother as well as the sexual-assault
examiner and the investigating officer that appellant had engaged in sexual
intercourse with her. The testimony of a child complainant, standing alone, is
sufficient to support a conviction for sexual assault. See Tex. Code Crim. Proc.
Ann. art. 38.07 (West 2011); Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim.
App. 1990) (concluding a child complainant’s unsophisticated terminology alone
established element of penetration beyond a reasonable doubt); Bargas v. State,
252 S.W.3d 876, 888 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Jensen v.
State, 66 S.W.3d 528, 534 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).

      The record also contains the sexual-assault examiner’s testimony that Sara
admitted that approximately four weeks before the doctor’s physical examination,
she and appellant had engaged in sexual intercourse. Although appellant asserts
that the results of the doctor’s physical examination could not confirm that
appellant had engaged in sexual intercourse with Sara, the doctor explained that it
is common to receive “normal” test results when a physical examination occurs
later than seven to ten days after a sexual assault. There is no requirement that a
child complainant’s testimony be corroborated by medical or physical evidence.
See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978);
Bargas, 252 S.W.3d at 888–89.

      Appellant asserts that Sara offered conflicting testimony, pointing to
testimony that Sara, at first, denied having sex with appellant and then later
changed her account when confronted by her mother. Appellant also points to
testimony in the record that he has noticeable scarring on his torso from being
burned in a fire as a young person and that Sara made no reference to the scars in
                                        7
her testimony, suggesting that her testimony cannot support his conviction.
Appellant also points to Matt’s trial testimony in which Matt denied having
witnessed appellant and Sara engage in sexual intercourse.           Despite Matt’s
testimony, the record contains other testimony from an investigating officer and
Mark that Matt had expressed a previous belief that, during the move, he had seen
appellant engaging in sexual conduct with Sara. The record also reflects that Matt
encountered familial tensions as a result of the sexual-assault allegations. The
jury, as trier of fact, held the ultimate authority to weigh the credibility of the
witnesses and the testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (West
2013); Bargas, 252 S.W.3d at 889. The jury judged the credibility of the witnesses
and reconciled conflicts in the evidence, and could have accepted or rejected any or
all of the evidence on either side. See Bargas, 252 S.W.3d at 889. Viewing the
evidence in the light most favorable to the verdict, we conclude the jury, as a
rational trier of fact, could have determined that the essential elements of the
offense were satisfied beyond a reasonable doubt. See id. Therefore, the evidence
is sufficient to support appellant’s conviction for aggravated sexual assault. See id.
Accordingly, we overrule appellant’s first issue.

                    ADMISSION OF IMPEACHMENT TESTIMONY
      In his second issue, appellant asserts that he was harmed and denied due
process when the State was permitted to introduce allegedly improper
impeachment testimony through Mark. Mark’s impeachment testimony consisted
of Matt’s prior inconsistent statements to his father and prosecutors that Matt had
observed appellant and Sara engaged in sexual conduct. On appeal, appellant
complains of Mark’s testimony of familial friction that suggested Matt had been
unduly pressured by his mother to change his account of the event in question.


                                          8
Appellant asserts that Mark’s testimony was improper impeachment evidence that
prejudiced appellant’s right to a fair trial and deprived him of due process of law.

      The record contains Mark’s testimony of “tension” between Matt and Matt’s
mother because of the underlying sexual-assault charges against appellant. Mark
described how Matt felt a “push” of sorts “to morally side with” appellant so that
appellant, Matt’s uncle, “wouldn’t get in trouble.”       The record also contains
Mark’s testimony that Matt believed appellant and Sara were engaging in sexual
intercourse because the covers slid off of them, testimony which appellant
characterizes on appeal as hearsay evidence. No objections were raised during
either of these instances of Mark’s testimony.         The record reflects Mark’s
subsequent confirmation that Matt spoke about being pressured by his mother to
change his account. At that point, appellant asserted a hearsay objection, which
was sustained by the trial court.

      Even presuming, without deciding, that that appellant’s hearsay objection to
some of Mark’s testimony regarding whether Matt was pressured to change his
account preserved appellant’s challenge on appeal to improper impeachment
testimony, any error was harmless in light of the admission of similar evidence at
trial without objection. See Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex.
Crim. App. 2010) (stating that improper admission of evidence was harmless “in
light of the proper admission into evidence of very similar” evidence); Rene v.
State, 376 S.W.3d 302, 307 (Tex. App.—Houston [14th Dist.] 2012, no pet.)
(concluding that had evidence been improperly admitted at trial, error would be
harmless in light of admission of other similar evidence without objection). Such
evidence already had been admitted, without any objection, when Mark spoke of
the family tension and the “push” for Matt to “morally side” with appellant so that

                                          9
appellant could avoid getting into trouble. Accordingly, we overrule appellant’s
second issue.

      The trial court’s judgment is affirmed.




                                       /s/      Kem Thompson Frost
                                                Justice



Panel consists of Justices Frost, Christopher, and Jamison.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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