                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00309-CR

CHARLES WOMBA HOLMES,
                                                        Appellant
v.

THE STATE OF TEXAS,
                                                        Appellee


                          From the 85th District Court
                              Brazos County, Texas
                        Trial Court No. 08-03005-CRF-85


                         MEMORANDUM OPINION


      Charles Womba Holmes appeals from a conviction for the offense of sexual

assault of a child for which he was sentenced to seventeen years in prison. TEX. PEN.

CODE ANN. § 22.021(a)(1)(B) (West Supp. 2012). Holmes complains that the evidence

was insufficient to find that he committed the offense beyond a reasonable doubt and

that the trial court abused its discretion in admitting a recording of a telephone

conversation between the victim and himself because the victim, a child, was legally

incapable of consenting to the recording. We affirm.
Sufficiency of the Evidence

         Holmes complains that the evidence was insufficient for the jury to have found

that he committed the offense beyond a reasonable doubt. Holmes bases his argument

on the concept that the testimony of P.S.B., the victim, contained inconsistences and

could not have been found to be credible when viewed with his testimony and that of

two witnesses who testified that P.S.B. and her mother made statements that indicated

that the allegations were fabricated.

       Our review of evidentiary sufficiency determines whether, by viewing the

evidence in the light most favorable to the verdict, any rational fact-finder could have

found the essential elements of the offense beyond a reasonable doubt.            Jackson v.

Virginia, 443 U. S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Because the jury is the exclusive judge of

the facts, the credibility of the witnesses, and the weight to be given to their testimony,

the jury may accept one version of the facts and reject another or it may reject any part

of a witness's testimony, and we may not re-evaluate the weight and credibility of the

evidence or substitute our judgment for that of the fact-finder. See Brooks, 323 S.W.3d at

899; Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008); Williams v. State, 235

S.W.3d 742, 750 (Tex. Crim. App. 2007); Margraves v. State, 34 S.W.3d 912, 919 (Tex.

Crim. App. 2000), overruled on other grounds by Laster v. State, 275 S.W.3d 512 (Tex. Crim.

App. 2009).       We accord almost complete deference to the jury's determinations of


Holmes v. State                                                                        Page 2
credibility and resolve any inconsistencies in the evidence in favor of the verdict. See

Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Curry v. State, 30 S.W.3d 394,

406 (Tex. Crim. App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007) ("When the record supports conflicting inferences, we presume that the factfinder

resolved the conflicts in favor of the prosecution and therefore defer to that

determination.").

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

aggravated sexual assault of a child and corroboration of that testimony is not required.

TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2012); Martinez v. State, 178 S.W.3d

806, 814 (Tex. Crim. App. 2005). Holmes argues that the evidence was insufficient

because the evidence was conflicting between P.S.B. and her mother's testimony versus

the testimony of Holmes and his two witnesses and because the jury deliberated for

over nine hours before rendering its verdict. We disagree.

       The jury was in the best position to observe the witnesses directly and 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 and the possible motive

of the victim to fabricate the story were all before the jury, and it was their

determination that Holmes was in fact, guilty of the offenses. The fact that the jury

deliberated for a significant amount of time demonstrates that the jury weighed the

evidence carefully before determining their verdict. By viewing all of the evidence in a


Holmes v. State                                                                      Page 3
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 Holmes committed the offenses as charged. We overrule issue one.

Admission of Evidence

       Holmes complains in his second issue that the trial court abused its discretion in

admitting a recording of a telephone conversation between Holmes and P.S.B. because

P.S.B., a minor, was legally incapable of consenting to the recording of the conversation.

The State responds that Holmes failed to preserve this complaint because he did not

object to the admission of the recording on this basis.

       Holmes's objection to the admission of the recording was "as improper

foundation," "the chain of custody, who's had this tape, who's intervened or anything of

this nature—whether it's the original tape or whether it's been—been altered." The trial

court overruled the objection.    Holmes did not object that P.S.B. was incapable to

consent to the making of the recording to the trial court. A complaint will not be

preserved if the legal basis of the complaint raised on appeal varies from the complaint

made at trial. Accordingly, Holmes failed to preserve this issue for appellate review.

See TEX. R. APP. P. 33.1(a)(1); Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App.

2009). We overrule issue two.




Holmes v. State                                                                      Page 4
Conclusion

       Having found no reversible error, we affirm the judgment of the trial court.




                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 25, 2012
Do not publish
[CR25]




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