                               NO. 12-09-00254-CR

                        IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

JOSHUA HAROLD GOLMON,
APPELLANT                                        '   APPEAL FROM THE 173RD

V.                                               '   JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,                              '   HENDERSON COUNTY, TEXAS
APPELLEE
                               MEMORANDUM OPINION
          Joshua Harold Golmon appeals his conviction for aggravated sexual assault of a
child, for which he was sentenced to imprisonment for fifty years.         In two issues,
Appellant contends that (1) an impermissibly suggestive photographic lineup was
improperly admitted into evidence and (2) the evidence is legally insufficient to support
the trial court’s judgment. We affirm.

                                       BACKGROUND
          On or about March 27, 2008, M.L., a twelve-year-old child, reported that she was
sexually assaulted. According to M.L., a white male with tattoos on his arms and neck,
who was driving a white Chevrolet Trailblazer, abducted her. Thereafter, the man drove
her to a remote field near County Road 2832 in Henderson County, Texas. Once there,
he removed M.L. from the vehicle, struck her when she tried to escape, threatened to
shoot her, and sexually assaulted her. M.L. later identified Appellant in a photographic
lineup.
          Appellant was charged by indictment with aggravated sexual assault and pleaded
“not guilty.” The matter proceeded to a jury trial. Ultimately, the jury found Appellant
“guilty” as charged. The matter proceeded to a bench trial on punishment, after which
the trial court sentenced Appellant to imprisonment for fifty years. This appeal followed.
                                 PHOTOGRAPHIC LINEUP
       In his first issue, Appellant argues that the photographic lineup by which M.L.
identified him was impermissibly suggestive and, as a result, there was a great likelihood
that he was misidentified as her assailant. Thus, Appellant contends, the trial court
erroneously admitted the photographic lineup into evidence.
Standard of Review
       We defer to a trial court's determination of historical facts supported by the record
when the trial court finds facts based upon an evaluation of the credibility and demeanor
of the witnesses. Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998). We
similarly defer to the trial court's rulings on mixed questions of law and fact when they
turn on the credibility of witnesses. Id. We review de novo mixed questions of law and
fact that do not turn on an evaluation of credibility and demeanor. Id. at 772–73. Here,
the admission of the photo array does not turn on a credibility evaluation, and, therefore,
we review it de novo.
The Identification Procedure
       A pretrial identification is inadmissible when (1) it is impermissibly suggestive
and (2) gives rise to a substantial likelihood of irreparable misidentification at trial. See
Loserth v. State, 985 S.W.2d 536, 543–44 (Tex. App.–San Antonio 1999, pet. ref’d).
Appellant must demonstrate the existence of both elements by clear and convincing
evidence. See id.
       Neither due process nor common sense requires that the individuals in a lineup
exhibit have features exactly matching those of the accused. Turner v. State, 600 S.W.2d
927, 933 (Tex. Crim. App. 1980); Colgin v. State, 132 S.W.3d 526, 532 (Tex. App.–
Houston [1st Dist.] 2004, pet. ref’d). Rather, a photo array must contain individuals who
fit a rough description of the suspect. Wilson v. State, 15 S.W.3d 544, 553 (Tex. App.–
Dallas 1999, pet. ref'd).
       Here, Appellant contends that the photo array was impermissibly suggestive
because he was the only person in the six person array with tattoos on his neck. The
State stipulates that Appellant’s neck tattoos are visible in the picture, but contends that
this discrepancy is small and not obvious in the photograph. We have observed a color
copy of the photographic lineup in the record. Based on our review of this evidence, we
conclude that the description of Appellant’s neck tattoos as “small” and “not obvious” is
a generous description. In fact, the tattoos on Appellant’s neck are barely visible and
very unlikely to be noticed unless the observer is alerted to their existence. These tattoos
could be, in this court’s opinion, easily mistaken for a shadow or hair on Appellant’s
neck. Each of the men in the photographic array appear to be Anglo-American, are
dressed in casual civilian clothes, exhibit some facial hair, have short, dark hair, and
appear similar to Appellant in age, size, and build. Moreover, in each picture, there is a
small degree of shadowing along the neckline similar to what the State stipulates are
visible neck tattoos in Appellant’s picture.      Therefore, based on our review of the
evidence in this case, we conclude that the photo array at issue was not impermissibly
suggestive. Thus, we hold that the trial court did not err in introducing the photographic
lineup into evidence. Appellant’s first issue is overruled.

                                    LEGAL SUFFICIENCY
          In his second issue, Appellant argues that the evidence is legally insufficient to
support the trial court’s judgment. Appellant concedes that there is evidence to support
each element of the offense of aggravated sexual assault. However, Appellant contends
that this evidence does not rise to the level to allow the jury to find that Appellant was
guilty beyond a reasonable doubt.
          Legal sufficiency is the constitutional minimum required by the Due Process
Clause of the Fourteenth Amendment to sustain a criminal conviction.            Jackson v.
Virginia, 443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979);
Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref'd). The standard
for reviewing a legal sufficiency challenge is whether any rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App.
1993). The evidence is examined in the light most favorable to the jury’s verdict.
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful
legal sufficiency challenge will result in rendition of an acquittal by the reviewing court.
See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652
(1982).
          Our role is that of appellate review, and the fact finder is the sole judge of the
weight and credibility of a witness’s testimony. See Wesbrook v. State, 29 S.W.3d 103,
111–12 (Tex. Crim. App. 2000). The fact finder may choose to believe all, some, or none
of a witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
          Moreover, the legal sufficiency of the evidence is measured against the elements
of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997).           Such a charge would include one that
“accurately sets out the law, is authorized by the indictment, does not unnecessarily
increase the State's burden of proof or unnecessarily restrict the State's theories of
liability, and adequately describes the particular offense for which the defendant was
tried.” Malik, 953 S.W.2d at 240.
       In the case at hand, to support Appellant=s conviction for aggravated sexual
assault of a child, the State was required to prove that Appellant intentionally or
knowingly caused the sexual organ of M.L., a child, to contact his sexual organ. See
TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii) (Vernon Supp. 2009). We note that the
testimony of a child sexual offense victim alone is sufficient to support a conviction for
aggravated sexual assault. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon 2005);
Martinez v. State, 178 S.W.3d 806, 814 (Tex. Crim. App. 2005); Garcia v. State, 563
S.W.2d 925, 928 (Tex. Crim. App. 1978).
       M.L. testified as the State’s first witness. M.L. stated that she was twelve years
old at the time in question. M.L. further stated that she was walking home from a
friend’s house when she saw a white Chevrolet Trailblazer stop on the side of the road.
M.L. testified that she continued to walk and even increased her pace, but that a man
grabbed her and placed her in the front seat of the white Chevrolet Trailblazer.
According to M.L., the man, whom she described as a white male with dark hair and
tattoos on his arms and neck, drove to a house he told her belonged to his cousin. M.L.
testified that when the man’s cousin did not respond to numerous honks of M.L.’s car
horn or a call from his cellular telephone, her abductor drove her into a remote field.
When the man stopped the car, M.L. exited the car and attempted to escape only to be
caught before she could reach the road. The man took her back to the area by his vehicle
and struck her in the lip. According to M.L., the man told her to remove her pants. M.L.
testified that she initially refused to comply, but when the man threatened to shoot her,
she relented and removed her pants and underwear. M.L. stated that the man, who had
removed his pants and placed a plastic bag over his “private part,” pushed her to the
ground, got on top of her, and put his “private part” inside her vagina. M.L. testified that
the man eventually got back into his truck and drove off, striking her leg and her side as
he departed.
       Sheriff’s deputy Robert Powers testified concerning his investigation of the scene
on the night in question. Powers stated that he located a red cellular telephone in a black
carrying case in a ditch off the roadway at or near the scene. Powers also stated that he
located a small pair of pink women’s underwear at the scene.
         Henderson County Sheriff’s Department Major Kevin Hanes testified that he was
able to call another cellular phone from the phone located at the scene to ascertain the
telephone number associated with the phone found at the scene. He also stated that
Appellant later told him his cellular phone number. Hanes further testified that, through a
subpoena, he was able to get records from the cellular telephone carrier related to the
phone found at the scene. Hanes stated that those records indicated that the phone found
at the scene belonged to Appellant. Hanes further stated that he went to Appellant’s
place of business to serve the arrest warrant. According to Hanes, Appellant was not at
work that day.        However, Hanes testified that Appellant’s boss informed him that
Appellant drove a white Chevrolet Trailblazer.                  Hanes also testified concerning the
photographic lineup he conducted pertaining to the case at hand. Hanes stated that when
M.L. was presented with the photographic lineup, she immediately circled Appellant’s
picture. Hanes further made an in-court identification of Appellant as the same person
M.L. had circled in the photographic lineup.
         Examining the aforementioned evidence in the light most favorable to the jury’s
verdict, we conclude that the jury could have reasonably determined beyond a reasonable
doubt that Appellant intentionally or knowingly caused the sexual organ of M.L., a child,
to contact his sexual organ. Therefore, we hold that the evidence is legally sufficient to
support the jury=s verdict. Appellant=s second issue is overruled.

                                               DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.
                                                                          SAM GRIFFITH
                                                                             Justice
Opinion delivered September 1, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                          (DO NOT PUBLISH)
