Opinion filed November 15, 2012




                                            In The


   Eleventh Court of Appeals
                                         __________

                                   No. 11-11-00303-CR
                                       __________

                   JAVIER HERRERA NAVARRETE, Appellant

                                               V.

                              STATE OF TEXAS, Appellee


                          On Appeal from the 238th District Court
                                 Midland County, Texas
                             Trial Court Cause No. CR37415



                           MEMORANDUM OPINION
       Javier Herrera Navarrete appeals his convictions by a jury of two counts of the offense of
indecency with a child. The jury assessed his punishment in both counts at five years in the
Texas Department of Criminal Justice, Institutional Division, and recommended that the
sentences be suspended. Accordingly, the trial court suspended the imposition of Navarette’s
sentences and placed him on community supervision in both counts for a period of ten years, to
include participation in the sex offender program. He contends in three points on appeal that the
evidence is insufficient to support his convictions, that his convictions solely upon lack of
evidence result in a denial of due process of law, and that there were several improper jury
arguments. We affirm.
       Navarrete contends in Point One that the evidence is insufficient to support his
convictions. We review the sufficiency of the evidence under the standard of review set forth in
Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d).
Under this standard, we examine all of the evidence in the light most favorable to the verdict and
determine whether, based on that evidence and any reasonable inferences from it, any rational
trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
       L.N., Navarette’s daughter, testified that she and K.P., the complaining witness, spent a
lot of time together in junior high and that K.P. would spend a lot of time at her house. She
indicated that, at one point, K.P. spent the night at her house almost every weekend.
       K.P. testified that, on the occasion in question, Navarette kneeled next to the bed in
which she and L.N. were sleeping and touched and squeezed her breast and her vagina through
her clothing. She said he smelled of beer, cigarette smoke, and oil. Other witnesses testified
concerning the investigation or their reactions to the occurrence. We hold that the evidence is
sufficient to support the conviction.
       Navarette suggests that the evidence is insufficient to support the conviction because
there was no scientific evidence and because the complaining witness denied ever having said
that, after she felt someone touch her, she woke up and saw a clown; denied saying that, when
Navarette came back into the bedroom, he started snoring and tried to reach over; and denied
telling her mother that Navarette began licking her ear and face while touching her breast, body,
and genitals through her clothing. While the complaining witness did deny at trial having
previously made these statements, a DVD of an interview the witness had earlier with Kim
Olivas, who had been a forensic interviewer with the Midland Rape and Children’s Advocacy
Center, appears to show that she had previously made some or all of these statements.
       The jury is the sole judge of the credibility of the witnesses and the weight to be given to
their testimony, and the reviewing court must not usurp this role by substituting its own
judgment for that of the jury. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App.
2012). The duty of the reviewing court is simply to ensure that the evidence presented supports
the jury’s verdict and that the State has presented a legally sufficient case of the offense charged.
Id. When the reviewing court is faced with a record supporting contradicting inferences, the
court must presume that the jury resolved any such conflicts in favor of the verdict, even if not
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explicitly stated in the record. Id. Navarette presents no authority in support of his contention
that the evidence in such a case is insufficient where there is no scientific evidence and where
there is a showing that the complaining witness has been inconsistent concerning her account of
some of the details of the incident in question, and we are not aware of any. We overrule Point
One.
       Navarrete contends in Point Two that he was denied due process of law solely because
his convictions were based upon lack of evidence. Because we have found that the evidence is
sufficient to support the convictions, we conclude that Navarrete was not denied due process of
law. Navarette suggests that no rational trier of fact could have convicted him upon the “proven,
untruthful testimony” from K.P., relying on the opinion of Alvarado v. State, 912 S.W.2d 199,
206–07 (Tex. Crim. App. 1995). He fails to explain how Alvarado supports his contention. We
have read the court’s opinion in Alvarado and fail to see any support for Navarette’s contention
contained therein. We overrule Point Two.
       Navarette urges in Point Three that there were several instances of improper argument on
the part of the State’s attorney. Navarrete refers specifically to the following: “The reason why
that’s bad is because he did it”; “[T]hink about what he testified to” (while reference was made
to Navarette having testified, it was apparent from the full context of the argument, and the fact
that Navarette had not testified, that the reference to his testimony referred to a statement
Navarette had given to an investigating officer); and at the punishment stage, “What she has had
to endure for the last year is damage that’s going to take a lifetime to get over.” We have
examined each argument to which Navarette refers and find that no objection was made to any of
the arguments to which he now objects. Nothing is presented for review. Cockrell v. State, 933
S.W.2d 73, 89 (Tex. Crim. App. 1996). We overrule Point Three.
       The judgments are affirmed.


                                                                                PER CURIAM
November 15, 2012
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill.1


       1
           John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
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