                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00225-CR

VICTOR GENE LANGFORD                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1039705D
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                        MEMORANDUM OPINION1

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                                   Introduction

      A jury convicted Appellant Victor Gene Langford of indecency with a child.

In two points, he challenges the sufficiency of the evidence to prove venue and

identity. We affirm.




      1
       See Tex. R. App. P. 47.4.
                                     Background

      M.C. is Appellant’s niece. She was fifteen years old when she testified that

Appellant used to babysit her at his home in Fort Worth after her parents had

dropped her off from school. She also testified that she and Appellant generally

spent the time watching television but that occasionally they wrestled or played

hide-and-seek.       M.C. further testified that often during the wrestling sessions

Appellant would “rub his self [sic], like his body against mine,” and “[get] on top

and he would pin me down or hold my hands up.” She testified that, “[h]e would

lift my shirt and rub his self against me” and that these rubbing-and-pinning

encounters transpired “about nine times” but that she remembered only three of

them specifically.

      The offense for which the jury found Appellant guilty occurred in one of his

bedrooms, during hide-and-seek when M.C. was nine or ten years old. M.C.

testified that Appellant “[got] on top of me and he would rub his hand up and

down my back. And one day he reached down to my pants into my underwear

and touched me.” M.C. noted specifically that Appellant touched her vagina with

his hand, moving his hand “around,” and “up and down.” She could not recall

how long the touching lasted but remembered that she felt “very uncomfortable

and scared.” She testified that this was the only time that Appellant had ever

touched her “private area.”

      M.C. further testified that she felt “too scared” to tell anyone about the

incident for some time after it happened. The following summer, she went on a


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family vacation to Mexico to visit her grandmother, and during that trip she told

her grandmother, whom she trusted. M.C. testified that she told her grandmother

because she felt a need to tell someone about what had happened. M.C.’s

grandmother then told M.C.’s parents, who, after the family returned home to Fort

Worth, took M.C. to Cook Children’s Hospital for an examination.            Sandra

Onyinanya, the pediatric nurse practitioner who conducted the examination,

testified that she saw no evidence of physical injury or trauma and that M.C. told

her that Appellant had not penetrated her with his hand or genitals but had

touched her “on top” of her genital area. Onyinanya added that because there

had been no penetration and so much time had elapsed between the touching

and the examination, it was normal and to be expected that the examination

would produce no physical evidence of sexual violation.

      M.C.’s parents notified the Fort Worth Police Department, and following an

investigation, Appellant was charged with indecency with a child, tried and

convicted by a jury, and sentenced to six years’ confinement.

                                      Venue

      In his first point, Appellant argues that the evidence is insufficient to show

that venue was proper in Tarrant County. Venue is proper in the county where

the offense occurred. See Tex. Code Crim. Proc. Ann. art. 13.18 (West 2005).

Venue is not considered an element of an offense; therefore, it need only be

proven by a preponderance of the evidence. See id. art. 13.17 (West 2005);

Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. [Panel Op.] 1981);


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Williams v. State, 356 S.W.3d 508, 518 (Tex. App.––Texarkana 2011, pet. ref’d).

State v. Blankenship, 170 S.W.3d 676, 681 (Tex. App.–-Austin 2005, pet. ref’d).

When reviewing venue, we view all of the evidence in the light most favorable to

an affirmative venue finding and ask whether any rational trier of fact could have

found by a preponderance of the evidence that venue was proved. Williams, 356

S.W.3d at 518; Vanschoyck v. State, 189 S.W.3d 333, 336 (Tex. App.—

Texarkana 2006, pet. ref’d.).

      Moreover, if venue is not disputed in the trial court, we must presume it

was proven unless the record affirmatively shows otherwise. Tex. R. App. P.

44.2(c)(1); Williams, 356 S.W.3d at 518; Couchman v. State, 3 S.W.3d 155, 161

(Tex. App.––Fort Worth 1999, pet. ref’d). A plea of “not guilty” is insufficient to

dispute venue in the trial court. Holdridge v. State, 707 S.W.2d 18, 20–21 (Tex.

Crim. App. 1986).

      Appellant directs us to no record evidence that he disputed venue in the

trial court and our review of the record has similarly failed to uncover such

evidence. Therefore, we are left to determine whether the record affirmatively

demonstrates that venue was not proper in Tarrant County. See Tex. R. App. P.

44.2(c)(1); Williams, 356 S.W.3d at 518. We conclude that it does not.

      M.C. testified that the sexual contact at issue occurred in one of the

bedrooms in Appellant’s house. Onyinanya testified that M.C. told her that the

touching last occurred “when [M.C.] was in Mexico last year”, and that “[i]t always

happened at his house.” Both M.C. and Appellant’s brother, Steven Langford,


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testified that one of the exhibits provided by the State was a photograph of

Appellant’s house, and that the house in the photograph was located in Tarrant

County, Texas. Fort Worth Police Officer Mark Pitt, who investigated the case,

testified that the warrant for Appellant’s arrest cited that the offense occurred at a

residence in Tarrant County.

      Appellant argues that the testimony of Officer Pitt and Steven Langford do

not assist the State in its burden to prove venue, as neither was an eyewitness to

the offense. This reasoning is unpersuasive, however, given that evidence of

venue may be direct or circumstantial, and that the factfinder may make

reasonable inferences from the evidence. See Couchman, 3 S.W.3d at 161;

Valdez v. State, 993 S.W.2d 346, 349 (Tex. App.—El Paso 1999, pet. ref’d). The

testimony of both men is direct evidence that Appellant owned the house

displayed in the State’s exhibit.      Further, their testimony, when interpreted

together along with the rest of the evidence, is circumstantial evidence that the

offense occurred in Tarrant County, and thus assists in proving venue.            We

therefore reject Appellant’s contention that Officer Pitt and Steven Langford’s

testimony is entitled to no weight.

      Appellant next argues that although M.C. was an eyewitness and did

indeed identify a photograph of Appellant’s house as belonging to him, her

testimony is insufficient to establish venue in Tarrant County. As support for this

proposition, Appellant notes that M.C. never stated that (1) Appellant’s house

was located in Tarrant County, or that (2) the offense took place at “Uncle


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Victor’s house” or in “Uncle Victor’s bedroom.” Although M.C.’s testimony on its

own may not be sufficient to establish venue in Tarrant County, it is sufficient

when combined with other facts and testimony bearing on the issue.              Here,

although M.C. never testified that Appellant’s house was located in Tarrant

County, Officer Pitt stated that an arrest warrant had been issued for Appellant

and that the location identified in the warrant was in Tarrant County. Steven

Langford identified Appellant’s house and testified that it was located in Tarrant

County.   This evidence, when taken together with M.C.’s testimony that the

offense occurred in one of Appellant’s bedrooms, would permit a rational jury to

find by a preponderance of the evidence that the offense occurred in Tarrant

County.

      Appellant argues that M.C.’s failure to state that the offense occurred in

“Uncle Victor’s house” or “Uncle Victor’s bedroom” renders her testimony

insufficient or useless for the purpose of establishing venue in Tarrant County.

Appellant contends that because M.C. did not refer to him by name (she stated

instead that the offense occurred “in his house”) when she testified as to where

the offense occurred, the credibility of her testimony is weakened to the point that

we must hold that the evidence is insufficient to establish venue. We disagree.

M.C.’s failure to identify Appellant by first and last name in her statement about

the location of the offense was not damaging to her testimony, as she also

testified that her parents dropped her off from school “at his house”, and when

asked to identify who “his” referred to, stated, “Victor.” Additionally, the record is


                                          6
not confusing or ambiguous as to whom M.C. referred when she testified that the

offense occurred “in one of his bedrooms.” Accordingly, we reject Appellant’s

argument.

      Appellant next contends that the testimony offered by the nurse

practitioner, Onyinanya, that M.C. told her that the offense occurred on M.C.’s

trip to Mexico, conflicts with M.C.’s own testimony that the offense occurred at

Appellant’s house in Tarrant County. He urges us to determine that this conflict

so weakens the evidence to show venue in Tarrant County as to render it

insufficient. Though Onyinanya’s testimony indeed conflicts with M.C.’s, such

conflicts concerning venue are questions of fact for the jury, and the jury’s

resolution of such conflicts should not be disturbed on appeal.        Holdridge, 707

S.W.2d at 22 n.4; Smith v. State, No. 14-02-00554-CR, 2003 WL 22145098, at *3

(Tex.––App. Houston [14th Dist.] Sept. 2003, no pet.) (mem. op., not designated

for publication). Further, in reviewing a venue finding, we view all of the evidence

in the light most favorable to an affirmative venue finding. Williams, 356 S.W.3d

at 518; Vanschoyck, 189 S.W.3d at 336. Under this standard of review, we hold

that the evidence was sufficient to permit a rational jury to find the offense

occurred in Tarrant County, and we overrule Appellant’s first point.

                                     Identity

      In his second point, Appellant argues that the evidence is insufficient to

prove he was the perpetrator. In our due-process review of the sufficiency of the

evidence to support a conviction, we view all of the evidence in the light most


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favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393

S.W.3d 763, 768 (Tex. Crim. App. 2013). This standard gives full play to the

responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Blackman v. State, 350 S.W.3d 588,

595 (Tex. Crim. App. 2011).

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393

S.W.3d at 768. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Temple, 390 S.W.3d at 360.

      Appellant first argues that M.C.’s failure in court to “identify her attacker by

name” gives rise to a “lack of clarification” that he in fact committed the offense.


                                          8
Appellant notes that M.C. never used Appellant’s last name when referring to him

and argues that “it would be irrational to assume that the testimony given by M.C.

always referred to [Appellant] because in this case M.C. is a fifteen-year-old

child.    An adult understanding of questions and their context should not be

presumed.” As support for the proposition that M.C. failed to properly understand

the questions she was asked at trial, Appellant points to M.C.’s statement that

she was not related to Appellant, a technically correct answer to the question

posed (“Are you related to [Appellant]?”), since Appellant is M.C.’s step-uncle,

but one that Appellant alleges misses the question’s less restrictive and intended

meaning. Appellant emphasizes the tendency of opposing counsel not to use

Appellant’s name in favor of “he” or “your uncle” and asserts that this lack of

specificity further confuses the issue of who the witnesses and parties were

speaking of at trial.    Appellant contends that these ambiguities are serious

enough to render the evidence insufficient to permit a rational jury to find beyond

a reasonable doubt that he committed the offense.

         We disagree that the ambiguities, if any, generated by the use of terms

other than Appellant’s name to identify him were serious enough to prevent a

rational jury from finding that Appellant committed the crime beyond a reasonable

doubt. On review of the record, we are left with no uncertainty that the testimony

at trial did in fact refer to Appellant and no other person. M.C. twice identified

Appellant in court by pointing to him, and on one of those occasions she

identified him by first name and as “my uncle.”        The State also identified


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Appellant by first name or “your uncle” in several of its questions to M.C. at trial.

There is no evidence that M.C. had another uncle named Victor, that another

uncle touched her in a sexual manner, or that anyone else named Victor touched

her in a sexual manner, and by extension, no reason to think anyone other than

Appellant was the person discussed at trial.

      M.C.’s alleged misinterpretation of the question, “Are you related to him?”

to which she answered “No,” does not seem to us a misconstruction of the

question posed to her, as Appellant asserts. Further, there is no evidence that

M.C. misunderstood other, more critical queries during the course of trial.

Appellant attempts to use M.C.’s age to impeach the evidence supporting his

conviction beyond the point of plausibility. We note also that the vast majority of

the questions M.C. was asked were basic and easily understandable, such as

“What did his hand do when he touched your vagina?” and “Why did you decide

to tell your grandmother?” These questions are well within the comprehension of

a fifteen-year-old child. Additionally, there is no evidence that M.C. had any

learning or comprehension problems; the evidence points to the contrary: M.C.

was on the “A-B honor roll” at her school, an indication that she fully understood

the questions asked. In the absence of any evidence supporting the contention

that M.C. misconstrued questions posed to her at trial, Appellant’s argument

amounts to mere speculation and does not foreclose the conclusion that a

rational jury could find that Appellant committed the offense beyond a reasonable

doubt.


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      Appellant directs us to no case law supporting his arguments for reversal

on the grounds of insufficiency of the evidence. His implication that it is seriously

unclear whether he, rather than another person, was the perpetrator spoken of at

trial does not render the evidence insufficient. We therefore reject Appellant’s

first argument as to the sufficiency of the evidence to support the jury’s finding

that Appellant committed the crime beyond a reasonable doubt.

      Appellant next contends that the evidence presented at trial not only is

insufficient but “clears” him of the crime entirely. Appellant argues that although

M.C. recognized her uncle’s house as it was depicted in the State’s photograph,

the prosecution did not ask her if the assault occurred at the house in the picture.

Appellant emphasizes M.C.’s inability to remember precisely what year the

offense took place, how much time elapsed between the offense and M.C.’s trip

to Mexico where she made an outcry statement to her grandmother, and how

long the trip to Mexico was. Appellant notes that Steven Langford testified that

M.C. gave him “no specifics” when she told him that “something had happened.”

Finally, Appellant reminds us that the pediatric nurse practitioner’s testimony that

M.C. said the offense occurred during a trip to Mexico that Appellant did not

make conflicts with M.C.’s testimony that the offense occurred at Appellant’s

house in Tarrant County. For all these reasons, Appellant argues, the evidence

is insufficient to support the jury’s finding that he was the person who committed

the offense. Appellant further theorizes that the crime was perpetrated in Mexico




                                         11
“by another of [M.C.’s] uncles, which is why she reported it after returning from

Mexico.”

       Although Appellant correctly identifies a number of reasons why a jury

might question the credibility of the witnesses’ testimony, we disagree that these

conflicts are serious enough to render the evidence insufficient to permit a

rational jury to find beyond a reasonable doubt that Appellant committed the

offense.   The lapses in M.C.’s recollection concerning what year the offense

occurred, how much time passed between the offense and her trip to Mexico,

and how long the trip to Mexico lasted are not unreasonable, given that the

offense occurred around 2006 and M.C. was asked to recollect the events five or

six years later, in 2012. If anything, M.C.’s memory gaps affected the credibility

and weight of her testimony.        It is the role of the factfinder to evaluate the

credibility of the evidence, and where the factfinder could have found the

defendant guilty beyond a reasonable doubt, the court of appeals is to leave the

factfinder’s verdict undisturbed.    See Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007). The jury in this case resolved the questions regarding the weight and

credibility of M.C.’s testimony in favor of the State, and because it could

reasonably have done so, we are not permitted to substitute a contrary judgment

in its place.

       Furthermore, the conflict between M.C.’s testimony that the offense

occurred in Appellant’s house in Fort Worth and the nurse practitioner’s


                                          12
testimony that M.C. told her the offense occurred in Mexico does not preclude

the jury from finding beyond a reasonable doubt that Appellant committed the

offense. Although a reviewing court is authorized to disagree with the jury's

determination, due deference must be given to the factfinder’s determinations

concerning the weight and credibility of the evidence.2

      In support of this conclusion, we first note that the nurse practitioner’s

testimony that M.C. told her that the offense took place in Mexico is an isolated

statement, nowhere corroborated by other evidence or testimony.           All other

testimony locates the offense at Appellant’s house in Fort Worth. Secondly, the

nurse practitioner also testified that when M.C. told her that the offense occurred

in Mexico, M.C. told her later in the same conversation that, “It always happened

at his house and Mom and Dad were at work.” M.C.’s statements to the nurse

practitioner thus do not differ entirely from the rest of the trial testimony. The

nurse practitioner’s statement that M.C. said the offense occurred in Mexico

merely calls into question the weight of the testimony that the event took place in

Fort Worth, and the jury could reasonably have resolved that conflict in favor of

the prosecution, and found beyond a reasonable doubt that Appellant committed

the offense.

      2
        We note also that M.C.’s testimony that Appellant penetrated her with his
hand by touching her vagina conflicts with the nurse practitioner’s testimony that
M.C. told her that Appellant touched her “on top” of her genital area. We find that
this conflict in testimony is not substantial enough to warrant reversal for many of
the same reasons that reversal on the basis of testimonial conflict about the
location of the offense is insufficient to require reversal.


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      We also reject Appellant’s alternative theory that M.C. was assaulted by

another uncle during her summer trip to Mexico, a theory that Appellant asserts

explains the nurse practitioner’s testimony that M.C. said the offense took place

in Mexico. Even assuming that Appellant’s version would explain the isolated

statement to the nurse practitioner, it would not explain the remaining testimony

and evidence that the offense occurred at Appellant’s home in Fort Worth.

Secondly, there is no evidence that M.C. was touched inappropriately by another

uncle or by another man named Victor, or that M.C. had another relative named

Victor or even knew another man named Victor. Because Appellant’s theory is

not based on evidence in the record, it is not reasonable and is accordingly

rejected. See Richardson v. State, 973 S.W.2d 384, 387 (Tex. App.—Dallas

1998, no pet.). We conclude that the evidence is sufficient to permit a rational

jury to find beyond a reasonable doubt that Appellant committed the offense, and

we overrule Appellant’s second point.




                                        14
                               Conclusion

      Having overruled Appellant’s two points, we affirm trial the court’s

judgment.


                                          /s/ Anne Gardner
                                         ANNE GARDNER
                                         JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

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

DELIVERED: August 14, 2014




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