Affirmed and Opinion filed June 23, 2015.




                                      In The

                      Fourteenth Court of Appeals

                               NO. 14-14-00085-CR
                               NO. 14-14-00087-CR

                            CODY CARR, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 183rd District Court
                             Harris County, Texas
                   Trial Court Cause No. 1405759 & 1405761


                                OPINION
      Appellant Cody Carr challenges his convictions for aggravated sexual
assault of a child, asserting insufficiency of the evidence and contending the “on or
about” language in the jury charges allowed the jury to reach a non-unanimous
verdict. We affirm.
                         I. FACTUAL AND PROCEDURAL BACKGROUND
          The ten-year-old complainant, Jane,1 is appellant’s daughter. According to
Jane, one night while she was staying with appellant and her stepmother over
Christmas break, appellant came into her room, flipped her onto her belly, and
placed his sexual organ in her anus.               The next morning, Jane was watching
cartoons on television when appellant approached her and asked her if she would
like some peanut butter. Jane responded affirmatively. Appellant then placed
goggles covered with tape over the child’s eyes. According to Jane, appellant
confirmed that she could not see. Then, Jane heard appellant leave. When he
returned, he asked the child to lick the peanut butter off of what he told her was his
finger. Jane concluded the peanut butter was on his sexual organ, not his finger.
After three or four licks, the child refused more peanut butter. Appellant then went
to take a shower.

              Jane told her best friends that her father did something “bad” to her. Jane
implored her friends to keep it a secret. Months later, Jane also told her mother
about the incidents.

          Charged in two indictments with aggravated sexual assault of a child,
appellant pleaded “not guilty” to both. The two cases were consolidated for trial.
At a trial by jury, the jury found appellant guilty as charged of both offenses. The
trial court assessed punishment for each offense at six years’ confinement, with the
sentences to run concurrently.

                                    II. ISSUES AND ANALYSIS

          A. Sufficiency of the Evidence

          In his first and second issues, appellant asserts that the evidence is
          1
              To protect the privacy of the child-complainant, we identify her by the pseudonym,
“Jane.”

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insufficient to show appellant intentionally or knowingly (1) caused Jane’s anus to
contact his sexual organ and (2) caused his sexual organ to contact Jane’s anus. In
particular, appellant asserts that the alleged assaults could not have taken place
because witnesses testified that appellant was not alone with Jane during Christmas
break, when she alleged the assaults occurred. Appellant also asserts that the
evidence is insufficient to show he caused Jane’s mouth to contact his sexual organ
because the child could not positively identify appellant’s sexual organ as the
object her mouth touched.

      In evaluating a challenge to the sufficiency of the evidence supporting a
criminal conviction, 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, 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).

      As is relevant to the instant cases, a person commits aggravated sexual

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assault if the person intentionally or knowingly (1) causes the anus of a child
younger than fourteen years of age to contact the person’s sexual organ, or (2)
causes the mouth of a child younger than fourteen years of age to contact the
person’s sexual organ. See Tex. Penal Code Ann. §§ 22.021(a)(1)(B) (West,
Westlaw through 2013 3d C.S.).           One indictment alleged that appellant
intentionally and knowingly caused his sexual organ to contact Jane’s anus. The
other indictment alleged that appellant intentionally and knowingly caused his
sexual organ to contact Jane’s mouth. A child-complainant’s testimony alone is
sufficient to support a conviction for aggravated sexual assault. See Tex. Code
Crim. Proc. Ann. art. 38.07 (West, Westlaw through 2013 3d C.S.).

      A. The First Incident

      Jane was ten years old and in fifth grade at the time of trial. Jane testified
that both incidents took place over Christmas break when she was in second grade.
Describing the first incident, she testified that she was alone in a bed in the
guestroom at appellant’s house when appellant came into the room. According to
Jane, there were times when appellant pulled up her shirt and kissed her belly. On
this night, appellant pulled down her shorts or underwear and turned her over to
where she was on her belly. Jane turned back to her side, but appellant turned her
back over onto her belly and proceeded to put his “private part” into her “butt.”
Jane testified that appellant did this about two or three times, then appellant would
stop, and then he repeated the action about three times. Jane testified that it hurt.
After appellant finished, he got off the bed and Jane went into the bathroom. Jane
testified that when she came out of the bathroom, appellant asked her if she was
okay and she told him she was. But, Jane said that her “butt” hurt for a week.

      A friend of Jane’s, also in fifth grade, testified that Jane told her something
bad about Jane’s father and asked her to keep it a secret. The friend testified that

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she kept Jane’s secret for awhile but she eventually told her parents because she
felt sad for Jane. Jane also eventually told her mother about appellant’s actions
because she could not “hold it in” anymore. According to Jane’s mother, one night
Jane informed the mother that she could not sleep. The tone of Jane’s voice was
very shaky and she looked very sad and scared. Jane’s mother asked Jane why she
could not sleep and Jane said she needed to disclose “something that her daddy had
done that is really, really, really bad.” Jane explained that she was unable to use
her words to tell her mother, but, through tears, Jane was able to write her mother a
note.    The note was admitted into evidence and was consistent with Jane’s
testimony at trial.

        After disclosing the assault, Jane saw Dr. Michelle Lyn and a social worker
at the Children’s Advocacy Center.         Dr. Lyn noted that at the time of her
evaluation, Jane was reliving events of abuse and was experiencing frequent
nightmares.

        Jane’s testimony alone is sufficient to support the convictions for aggravated
sexual assault. See Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990);
Bargas v. State, 252 S.W.3d 876, 888 (Tex. App.—Houston [14th Dist.] 2008, no
pet.). Even so, appellant argues that Jane’s testimony is unbelievable because he
was not alone with Jane during the Christmas break, when Jane alleged he
assaulted her. Jane’s mother and appellant’s wife both testified that appellant
picked up Jane from her mother’s home on December 17th and returned Jane to
her mother on December 24th.          Jane testified that she and her grandfather
(appellant’s father) shared a queen-sized bed in the guest bedroom in appellant’s
home during part of the break. According to Jane’s grandfather, he was there from
December 20th through December 24th. Appellant’s wife testified that she and
appellant dropped Jane off at her aunt’s home to spend the night on December

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17th, 18th, and 19th. But, Jane said there were nights that she was at appellant’s
home when her grandfather was not present. Jane’s grandfather’s testimony did
not establish that Jane was not alone with appellant. Jane and appellant’s wife
were the only witnesses who testified regarding Jane’s location during the first
three days of her Christmas break and their testimony conflicted. Appellant’s wife
also testified that appellant never got out of bed at night during Christmas break.
Jane’s testimony also conflicted with appellant’s in this respect. We presume the
jury, when faced with conflicting evidence, resolved conflicts in favor of the
prevailing party. Turro v. State, 867 S.W.2d at 47. Accordingly, we presume that
the jury accepted Jane’s testimony that she was alone with appellant and that
appellant assaulted her.

      The evidence is sufficient to support the jury’s verdict on the first offense.
See id.; Bargas, 252 S.W.3d at 888. Appellant’s first issue is overruled.

      B. The Second Incident

      Jane testified that the morning after appellant assaulted her, appellant
approached her and asked her if she wanted peanut butter while she was watching
cartoons. Jane responded affirmatively. Appellant left the room, retrieved goggles
that had tape over them, placed the goggles over Jane’s eyes, and asked her if she
could see. According to Jane, she told appellant she could not see. Appellant then
held up some fingers and asked her what he was holding up.              Jane said she
responded “[t]wo, or something like that,” and then appellant said, “Okay, you’re
fine.” Jane then heard footsteps and assumed appellant put peanut butter on
something before returning. Jane explained that when appellant returned he said,
“[h]ere’s some peanut butter,” and she licked the peanut butter off of something.
In her note, Jane said that appellant told her she was licking the peanut butter off of
his fingers, but she testified that it did not feel like a finger or spoon or any other

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type of utensil. After four licks, Jane related that appellant asked Jane if she
wanted more peanut butter and she said, “[n]o thank you.” According to Jane,
appellant then walked into the kitchen and helped her remove the goggles before
going upstairs to take a shower.

      With her eyes covered, Jane could not see during the peanut butter incident,
but she testified that she believed the peanut butter was on appellant’s “private
part.” Jane testified that she and appellant were alone at this time and appellant’s
wife was at work. Appellant’s wife testified that she had the entire Christmas
break away from work and she was always awake before appellant. Appellant
asserts that the evidence is legally insufficient to support his conviction under the
second indictment because the evidence shows he was not alone with Jane and
because, although Jane concluded that she licked peanut butter off of appellant’s
sexual organ, Jane did not see it and could not describe the way it felt.

      Jane’s testimony conflicted with appellant’s wife’s testimony regarding the
wife’s presence in the home at the time of the incident. We presume the jury
resolved the conflict in the evidence in favor of the prevailing party. Turro, 867
S.W.2d at 47.     We presume the jury believed Jane’s testimony that the assault
occurred and that the jury discounted appellant’s wife’s testimony that it did not.
See Fuentes, 991 S.W.2d at 271.

      Relying on her senses other than vision, Jane was able to say that the surface
from which she licked the peanut butter did not feel like a finger, a spoon, or any
other kind of utensil. Although Jane testified that she did not see appellant’s
sexual organ and, although she could not describe it (other than distinguishing it
from the objects identified above), she concluded appellant had her lick peanut
butter off his sexual organ and the evidence is sufficient for the jury to have
determined Jane was correct in her assessment. See Villalon, 791 S.W.2d 130, 134

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(Tex. Crim. App. 1990) (noting that child-complainants are not expected to testify
with the same clarity and ability as is expected of adults); Meeks v. State, 897
S.W.2d 950, 955 (Tex. App.—Fort Worth 1995, no pet.) (holding that
complainant’s failure to make in-court identification of defendant went to the
weight and credibility of the witnesses and concluding circumstantial evidence was
sufficient to uphold defendant’s conviction).       First, we note that Jane was
consistent in her conclusion. In her note to her mother, Jane wrote that appellant
put peanut butter on his “thing” and asked her to lick it off. In this note, she used
the term “thing” to describe appellant’s sexual organ in the context of the first
assault.   Second, the timing of the second assault lends credibility to Jane’s
conclusion. The second assault occurred the morning after the first assault. The
jury could have concluded that, even though Jane did not see appellant’s sexual
organ, she was able to conclude that it was his sexual organ based on having been
assaulted the night before. Third, Jane wrote that appellant told her she was
licking peanut butter off of his finger, but using sensory input, Jane concluded it
did not feel like a finger. Based on this evidence, the jury could have concluded
that appellant lied to Jane, a fact that supports Jane’s conclusion that appellant had
her lick peanut butter off his sexual organ. See King v. State, 29 S.W.3d 556, 565
(Tex. Crim. App. 2000) (noting that lies are indicative of consciousness of guilt).
Finally, appellant’s actions in placing goggles over Jane’s eyes so that she was
unable to see what appellant was doing bolster’s Jane’s conclusion that appellant
was asking her to lick his sexual organ. See Word v. State, 12 Tex. Ct. App. 174,
183 (1882) (noting that defendants who render their victims insensible should not
be freed simply because the victim cannot swear positively to the act of
penetration).   This evidence is sufficient for the jury to have concluded that
appellant caused Jane’s mouth to contact his sexual organ. See Villalon, 791
S.W.2d at 134. Appellant’s second issue is overruled.
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      C. “On or about” Language in Indictments

      In his third issue, appellant asserts that the trial court erred in charging the
jury that there were no limitations periods for the offenses. Appellant argues that
the “on or about” language and the instruction that there is no limitations period for
the offense allowed for a non-unanimous jury verdict because the members of the
jury could have convicted him even though they did not unanimously agree on the
factual elements underlying any specific offense.

      The jury received two separate charges relating to the two separate
indictments. Both charges begin with the words: “The defendant, Cody Carr,
stands charged by indictment with the offense of aggravated sexual assault of a
child, alleged to have been committed on or about the 20th day of December, 2010,
in Harris County, Texas.”      One charge defines aggravated sexual assault as
“intentionally or knowingly caus[ing] the mouth of a child to contact the sexual
organ of another person.” The other charge defines aggravated sexual assault as
“intentionally or knowingly caus[ing] the anus of a child to contact the sexual
organ of another person.”      The jury received two separate charges detailing
separate offenses.   Both charges instructed the jury that its verdict must be
unanimous.

      The State need not allege a specific date in an indictment. Sledge v. State,
953 S.W.2d 253, 256 (Tex. Crim. App. 1997). 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. Id. Texas law requires that a jury reach a
unanimous verdict about the specific crime the defendant committed. Cosio v.
State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011). This means that the jury must
agree upon a single and discrete incident that would constitute the commission of

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the offense alleged. Id. Non-unanimity may result in certain instances when the
jury charge fails to properly instruct the jury, based on the indicted offenses, and
specific evidence in the case, that the verdict must be unanimous.

      Non-unanimity may occur when the State charges one offense, but presents
evidence that the defendant committed the charged offense on multiple but
separate occasions or the State charges one offense and presents evidence of an
offense committed at a different time that violates a different provision of the same
criminal statute. Id. at 772. In the first scenario, each of the multiple incidents
individually establishes a different offense and to ensure unanimity in this
situation, the charge would need to instruct the jury that its verdict must be
unanimous as to a single offense among those presented. Id. In the second
scenario, the charge would need to instruct the jury that it has to be unanimous
about which statutory provision, among those available, the accused violated.

      In the instant cases, the jury received two separate charges and the evidence
at trial was limited to evidence of two separate, discrete offenses.        There is
evidence of one instance in which appellant caused Jane’s anus to contact his
sexual organ and there is one charge related to that conduct. This charge instructed
the jury that its verdict must be unanimous as to that charge. There is also
evidence of one instance in which appellant caused Jane’s mouth to contact
appellant’s sexual organ and there is one charge related to that conduct. This
charge instructed the jury that its verdict must be unanimous as to this charge.
There is no evidence of other actions that occurred at other times that could
constitute these offenses and cause the jury to agree that either offense had
occurred and disagree on the facts underlying the offense. To convict appellant of
either offense, the jury had to agree on the factual elements underlying the
conviction. The jury convicted appellant of both offenses. In neither case did the

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charge allow the jury to reach a non-unanimous verdict. See id. at 772; Sledge,
953 S.W.2d at 256. The trial court did not err in providing the charges to the jury.
Appellant’s third issue is overruled.

                                III.    CONCLUSION

       Appellant’s convictions are supported by sufficient evidence. The trial court
did not err in charging the jury on the statute of limitations. The judgment of the
trial court is affirmed.




                                              Kem Thompson Frost
                                              Chief Justice



Panel consists of Chief Justice Frost and Justices Boyce and McCally.
Publish — TEX. R. APP. P. 47.2(b).




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