
                              NO. 07-09-0204-CR

                          IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL C

                                MARCH 16, 2010




                               EUTIMIO OLIVAS,


                                   Appellant
                                     v.


                             THE STATE OF TEXAS,


                                      Appellee
                        _____________________________

               FROM THE 121ST DISTRICT COURT OF TERRY COUNTY;

                NO. 5793; HONORABLE KELLY G. MOORE, PRESIDING



                             Memorandum Opinion



Before  QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Appellant Eutimio Olivas was convicted  of  two  counts  of  indecency
with a  child  (his  stepdaughter).   In  appealing  those  convictions,  he
contends the evidence is  legally  and  factually  insufficient  to  support
them.  The judgments are affirmed.
      We review challenges to the sufficiency  of  the  evidence  under  the
standards discussed in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,  61
L.Ed.2d 560 (1979) and Watson v. State, 204  S.W.3d  404  (Tex.  Crim.  App.
2006).  Appellant was charged with intentionally and knowingly  engaging  in
sexual contact with the complainant by touching her  anus  and  her  breast.
He argues that the evidence shows  at  most  that  he  only  "attempted"  to
commit indecency with  a  child  because  he  did  not  actually  touch  the
complainant's breast or anus.  We disagree.
      The complainant, who was fifteen at the time of trial, testified  that
as appellant was waking her up,  he  put  his  hand  "in  my  pants  and  my
underwear and started rubbing my butt all the way to where you use the rest-
room."  Another time when she was sleeping, he rubbed  her  back,  tried  to
remove the strap of her bra, and  touched  the  side  of  her  breast.   She
admitted that, prior to trial, she had never  told  anyone  other  than  the
district attorney that appellant had touched her anus.   However,  this  was
because she was young and did not  explain  the  "details,"  she  continued.
Furthermore, when asked if her "butt" encompassed  only  the  "cheeks,"  she
replied that she "would consider it  all  of  it."   She  also  denied  ever
"changing" her story.  At other times, she also described the  incidents  as
being touched "almost to where you use the rest-room" and not being  touched
on the breast but "[l]ike right here [demonstrative]."   There  was  further
evidence that a police  officer  asked  her  if  she  had  been  touched  by
appellant on her breast and she indicated she had not.
      Appellant gave a statement to police in which he admitted that he  had
touched the complainant on the breast "under  her  blouse"  and  "under  her
pants" on "her butt."  However, at trial he explained that he  had  admitted
to those events because he believed he could keep his family together if  he
did so but they did not happen the way he described them.
      Admittedly, the evidence as to the exact places where the  complainant
was touched is conflicting.  Yet, that alone does not  render  the  evidence
insufficient.  Watson v. State, 204 S.W.3d at 417 (stating that  it  is  not
enough for a new trial that a  conflict  in  the  evidence  would  cause  an
appellate court to disagree with the jury's  resolution  of  the  conflict).
The complainant did testify that she was rubbed up to  where  one  uses  the
restroom from which the jury could reasonably infer that she was touched  on
her anus. See Hill v. State, 3 S.W.3d 249, 254 (Tex.  App.-Waco  1999,  pet.
ref'd) (stating that when the victim said she was touched in the  place  she
went to  the  bathroom,  the  jury  could  infer  she  was  touched  on  her
genitals).  She also stated at least  once  that  she  was  touched  on  her
breast  and  appellant  admitted  to  touching  her  on  the  breast.   This
testimony is legally sufficient  to  sustain  the  convictions.   Jensen  v.
State, 66 S.W.3d 528, 534 (Tex. App.-Houston [14th Dist.] 2002, pet.  ref'd)
(stating that the testimony  of  the  complainant  alone  is  sufficient  to
support a conviction).
      The other evidence  of  record  tends  to  place  her  credibility  in
question.  But, whether to believe or disbelieve her  was  a  matter  within
the jury's province, that is, for it to  resolve.   Wesbrook  v.  State,  29
S.W.3d 103, 111 (Tex. Crim. App. 2000).  We cannot say that  the  manner  in
which it resolved the issue was so against the great weight of the  evidence
as to undermine  our  confidence  in  it.   That  is,  we  see  no  manifest
injustice given the totality of the evidence before the jury.
      Accordingly, we overrule the issues, find  the  evidence  to  be  both
legally and factually sufficient to support the  verdicts,  and  affirm  the
judgments of the trial court.

                                        Brian Quinn
                                        Chief Justice

Do not publish.
