                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-10-00187-CR

JONATHAN LENARD WOMACK,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee


                          From the 54th District Court
                           McLennan County, Texas
                           Trial Court No. 2009-53-C2


                         MEMORANDUM OPINION


      Jonathan Lenard Womack appeals from convictions of three counts of

aggravated sexual assault and one count of indecency with a child by exposure. TEX.

PEN. CODE ANN. §§ 22.021 & 21.11 (Vernon 2003).           Womack was sentenced to

imprisonment for forty-five (45) years on each of the aggravated sexual assault charges

and ten (10) years on the indecency charge, with the sentences to be served

consecutively, and a $5,000 fine on each of the four charges. Womack complains that

the evidence was legally and factually insufficient to sustain his convictions. Because
we find that the evidence was legally sufficient, we affirm the judgment of the trial

court.

Legal Sufficiency

         Womack’s complains in his first issue that the evidence was legally insufficient

for the jury to have found that he committed the offenses for which he was convicted

because there was no physical evidence of any offense; the only witness to the

occurrences was T.E. herself; T.E.’s mother and siblings do not believe her; and

Womack denied touching her entirely.

Standard of Review

         There is now only one standard for determining the sufficiency of the evidence,

which is the standard as set forth in Jackson v. Virginia. Brooks v. State, 323 S.W.3d 893

(Tex. Crim. App. 2010) (plurality op.). In reviewing the sufficiency of the evidence to

support a conviction, we view all of the evidence in the light most favorable to the

prosecution in order to determine whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007). We consider all of the evidence admitted at trial, even

improperly admitted evidence, when performing this sufficiency review. Clayton, 235

S.W.3d at 778; Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004).

The Facts

         Womack married T.E.’s mother in Georgia some time prior to the family moving

to Texas. T.E. stated that Womack first touched her inappropriately while they were

Womack v. State                                                                     Page 2
still living in Georgia by the penetration of her vagina and anus with his fingers, mouth,

and penis. T.E. testified that this occurred more than once while they were in Georgia,

although her statements were inconsistent as to how many times it had occurred. When

the family moved to Texas, T.E.’s mother got a job that necessitated her leaving the

home very early in the morning and Womack would get T.E. and her two sisters up and

ready for school in the mornings. The family had lived in Texas for approximately

eight to nine weeks prior to Womack’s arrest. On the last weekend of September in

2008, T.E.’s mother was in Dallas for the weekend due to her job. T.E. testified to a

similar incident that occurred that weekend as well as another that took place on the

day before she told her mother what had been occurring.

       Upon making the outcry, T.E.’s mother took T.E. to the hospital where a SANE

(Sexual Assault Nurse Examiner) exam was performed. No DNA was collected, which

was most likely due to the passage of time and showering. When the police were at the

residence to collect evidence, T.E. showed the police a washcloth that she indicated

Womack had used to wipe off the “white stuff” he had ejaculated; however, it did not

have the presence of any male cells on it. The clothing T.E. claimed that she was

wearing and that Womack had gotten semen onto on the day of the last incident had

already been washed by Womack before the police came to the residence to collect

evidence.

       Neither T.E.’s mother nor her grandmother believed T.E.’s version of events.

Rather, Womack attempted to establish that T.E. was afraid of Womack because of bad

grades she had just gotten and so she made up the outcry before anything could happen

Womack v. State                                                                     Page 3
to her. Womack had disciplined T.E. before for her bad grades. Womack testified and

denied ever touching T.E. inappropriately. Further, Womack had been diagnosed with

genital herpes; yet T.E. testified that he never used a condom and T.E. later tested

negative for herpes.

Analysis

       The testimony of a child victim is sufficient to support a conviction for

aggravated sexual assault or indecency with a child and corroboration is not required.

TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon 2005); Martinez v. State, 178 S.W.3d 806,

814 (Tex. Crim. App. 2005). Further, it is the responsibility of the jury to determine the

credibility and weight of the witnesses’ testimony, as we are unable to observe the

demeanor and credibility of the witnesses from a cold record. Johnson v. State, 23

S.W.3d 1, 9 (Tex. Crim. App. 2000).

       The absence of physical evidence does not render the evidence insufficient.

Glockzin v. State, 220 S.W.3d 140, 148 (Tex. App.—Waco 2007, pet. ref’d) (factual

sufficiency analysis). Rather, the lack of physical or forensic evidence is a factor that the

jury may consider in weighing the evidence. Lee v. State, 176 S.W.3d 452, 458 (Tex.

App.—Houston [1st Dist.] 2004), aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006).

       Because the jury was in the best position to observe the witnesses directly, the

jury was in the best position to determine which witnesses were credible or were not

credible. The inconsistencies in the testimony of the witnesses, the lack of physical

evidence, and the possible motive of the victim to fabricate the story were all before the

jury, and it was their determination that Womack was in fact, guilty of the offenses. By

Womack v. State                                                                        Page 4
viewing the evidence in a light most favorable to the verdict and giving the appropriate

deference to the jury’s credibility determinations, we find that there was legally

sufficient evidence for the jury to determine that Womack committed the offenses as

charged. We overrule issue one.

Factual Sufficiency

       Womack complains in his second issue that the evidence was factually

insufficient for the jury to have found him guilty of the offenses. Because the Court of

Criminal Appeals recently held that “the Jackson v. Virginia standard is the only

standard that a reviewing court should apply in determining whether the evidence is

sufficient,” we overrule Womack’s second issue. Brooks v. State, 323 S.W.3d 893 (Tex.

Crim. App. 2010).

Conclusion

       Having overruled each issue on appeal, we affirm the trial court’s judgment.



                                        TOM GRAY
                                        Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed January 12, 2011
Do not publish
[CRPM]




Womack v. State                                                                   Page 5
