                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-224-CR


CHIOKE HASANE MANNIE                                              APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE

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           FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      A jury convicted appellant Chioke Hasane Mannie of aggravated sexual

assault of a child and indecency with a child and assessed his punishment at

twenty-five years’ confinement and eight years’ confinement, respectively. The

trial court sentenced appellant accordingly, ordering the sentences to run

concurrently. Appellant brings two issues on appeal. We affirm.




      1
          … See Tex. R. App. P. 47.4.
      In his first issue, appellant claims the evidence is legally and factually

insufficient to support his conviction for aggravated sexual assault.

      In reviewing legal sufficiency, we consider all the evidence in the light

most favorable to the verdict and determine whether any rational juror, based

on the evidence and reasonable inferences supported by the evidence, could

have found the essential elements of the crime beyond a reasonable doubt.2

      When reviewing factual sufficiency, we view all the evidence in a neutral

light.3 We then ask whether the evidence supporting the conviction, although

legally sufficient, is nevertheless so weak that the factfinder’s determination is

clearly wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. 4




      2
      … Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007);
Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001).
      3
      … Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert.
denied, 129 S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex.
Crim. App. 2006).
      4
     … Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008);
Watson, 204 S.W.3d at 414-15, 417.

                                        2
      The testimony of a child sexual assault victim, standing alone, is

sufficient to support a conviction for aggravated sexual assault.5 Courts give

wide latitude to testimony given by a child victim of sexual abuse.6         The

victim’s description of what happened to her need not be precise, and she is

not expected to testify at the same level of sophistication as an adult. 7 The

victim’s testimony is not required to be validated by medical or physical

evidence. 8

      Appellant contends the evidence is legally and factually insufficient to

support his conviction for aggravated sexual assault because there was no

evidence to show that he penetrated R.H.’s sexual organ. However, neither the

indictment nor the court’s charge alleged penetration; the issue in this case was

whether the evidence showed that appellant intentionally or knowingly caused

R.H.’s sexual organ to contact his sexual organ.

      The record shows that R.H. was fourteen years old when she testified at

appellant’s trial. She testified that, when she was twelve, appellant grabbed


      5
       … Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); see Garcia v.
State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978).
      6
          … See Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990).
      7
          … See id.
      8
       … Garcia, 563 S.W.2d at 928; Kemple v. State, 725 S.W.2d 483, 485
(Tex. App.—Corpus Christi 1987, no pet.).

                                        3
her arm, took her upstairs to his apartment, put her on a bed, pulled her shorts

and panties down, and penetrated her with his penis. She stated that she had

“no doubt” that appellant’s sexual organ penetrated or contacted her sexual

organ. A sexual assault nurse examiner, having examined R.H., testified that

R.H. told her she had been raped and that her assailant had “put his penis in my

vagina.” Further, appellant’s semen was found in the crotch of R.H.’s panties.

We hold that the evidence was sufficient to support the jury’s verdict that

appellant committed aggravated sexual assault by causing R.H.’s sexual organ

to contact his sexual organ. 9

      In support of his claim that the evidence is factually insufficient, appellant

points to testimony that there were no physical signs of assault, that vaginal

swabs showed no evidence of spermatozoa or other profile, that a sample

collected from R.H.’s breast did not reveal sufficient data to conclude whether

it contained appellant’s DNA, that R.H. did not display reactions that would be

expected of a victim of sexual assault, and that she gave different versions to

different witnesses of how the assault occurred.

      We defer to the jurors’ resolution of credibility issues and conflicts in the

testimony. Considering all the evidence in a neutral light, we hold that the



      9
     … See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235
S.W.3d at 778; Garcia, 563 S.W.2d at 928.

                                         4
jury’s resolution of the facts in this case is not clearly wrong and manifestly

unjust, nor is the evidence supporting the verdict so weak or so outweighed by

conflicting evidence that the jury’s determination is manifestly unjust. 10

         Because we hold that the evidence is legally and factually sufficient to

support appellant’s conviction for aggravated sexual assault, we overrule his

first issue.

         In his second issue, appellant asserts that the trial court erred by “not

providing an alternate juror at jury selection” and by not replacing the excused

juror.

         After the jury was sworn but before testimony began, one of the jurors

suffered a heart attack. Appellant agreed that the juror was disabled, and the

trial court, acting under authority of code of criminal procedure article 36.29(a),

dismissed the disabled juror and proceeded to trial with the remaining eleven.11

         There is nothing in the record to show that appellant objected to the trial

court’s failure to appoint alternate jurors either during the trial selection process

or when the jury panel was seated. Accordingly, appellant’s claim that the trial




         10
              … Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414–15, 417.
         11
              … See Tex. Code Crim. Proc. Ann. art. 36.29(a) (Vernon Supp. 2008).

                                           5
court erred by not providing an alternate juror, therefore, is forfeited by his

failure to raise an objection.12

      As to his claim that the trial court erred by not replacing the excused

juror, appellant concedes that there is no authority supporting his position but

he asserts that proceeding with only eleven jurors violated “his right to be tried

by twelve jurors as guaranteed by the Texas [c]onstitution.”          The Texas

constitution, however, explicitly provides that a trial can proceed with as few

as nine jurors if a juror is dismissed because of a disability.13

      In this case, after appellant agreed that the juror had become disabled,

the trial judge dismissed the disabled juror and proceeded to trial with the

remaining eleven.14     Because the state constitution provides that trial may

proceed with as few as nine jurors when up to three become disabled, there is

no constitutional violation, and we overrule appellant’s second issue.




      12
        … See Tex. R. App. P. 33.1. Moreover, even if appellant had preserved
his claim, under article 33.011(a) of the code of criminal procedure, providing
alternate jurors is discretionary with the trial court. See Tex. Code Crim. Proc.
Ann. art. 33.011(a) (Vernon Supp. 2008) (“judge may direct that not more than
four jurors in addition to the regular jury be called and impaneled to sit as
alternate jurors”) (emphasis added).
      13
           … See Tex. Const. art. V, § 13.
      14
           … See Tex. Code Crim. Proc. Ann. art. 36.29(a) (Vernon Supp. 2008).

                                        6
     Having overruled both of appellant’s issues, we affirm the trial court’s

judgment.

                                               PER CURIAM

PANEL: CAYCE, C.J.; GARDNER and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 23, 2009




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