                         NUMBER 13-12-00297-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

BILLY RAY KNOX,                                                        Appellant,


                                         v.


THE STATE OF TEXAS,                                                    Appellee.


                  On appeal from the 410th District Court
                      of Montgomery County, Texas.


                       MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria
      By two issues, appellant, Billy Ray Knox, appeals his conviction for aggravated

sexual assault of a child under the age of fourteen, a first-degree felony. See TEX.

PENAL CODE ANN. § 22.021(a)(1)(B) (West 2011). Appellant argues that the evidence is
insufficient to support his conviction and that the trial court improperly assessed

attorneys’ fees despite originally finding appellant to be indigent. We affirm as modified.

                                              I. BACKGROUND1

       The State indicted appellant on two counts of aggravated sexual assault of S.G.,

a minor under the age of fourteen.2 See id. Appellant plead not guilty, and the case

was tried to a jury. The jury returned a verdict of guilty on one count and not guilty on

the other. Appellant was sentenced by agreement to twenty years’ imprisonment. This

appeal followed.

       At trial, the State introduced testimony from Stephanie Evans, a therapist treating

S.G., that S.G. made an outcry to her stating that “[appellant] put his private in my

mouth.” Sergeant J.D. Thomas, a police officer with the Montgomery County Sherriff’s

Department who interrogated appellant under Miranda warnings, testified that he asked

appellant if S.G.’s mouth “was on his penis for ten seconds or longer”, and testified that

appellant responded “yeah or yes.”              A video recording of this portion of Thomas’s

interview with appellant was displayed to the jury and confirmed Thomas’s testimony.

Veronica Sjolander, a special investigator for crimes against children at the Montgomery

County District Attorney’s Office, testified that appellant admitted to her during an

interview that the victim’s mouth touched his penis “in the bathtub.”                     The video of

Sjolander’s interview with appellant was admitted without objection by the trial court and

confirmed her testimony regarding appellant’s statements.                   S.G. testified at trial to

abuse by appellant and other men.

       1
         This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §
73.001 (West 2005).
       2
           S.G. was approximately five years old at the time the crimes were committed.

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                                          II. ANALYSIS
   A. Sufficiency of the Evidence

         Appellant argues that the evidence is insufficient to support his conviction for

aggravated sexual assault because S.G. denied on the stand that appellant ever

penetrated S.G.’s mouth with his genitals as charged in the indictment.             Appellant

argues that in light of this denial, no rational fact-finder could find appellant guilty of the

charged offense.

         1. Standard of Review

         In evaluating the sufficiency of the evidence supporting a conviction, our inquiry

is “whether, after viewing the evidence in a light most favorable to the verdict, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Garcia v. State, 367 S.W.3d 684, 686–87 (Tex. Crim. App. 2012)

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). It is the role of the trier of fact to

resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from

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

Jackson, 443 U.S. at 318–19 (1979)). The trier of fact, in this case the jury, is the sole

judge of the credibility of witnesses and the weight, if any, to be given to their testimony.

Garcia, 367 S.W.3d at 686–87; Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App.

2010).     The State may prove the elements of an offense by either direct or

circumstantial evidence.     Hooper, 214 S.W.3d at 13.         In an evidentiary sufficiency

review, “circumstantial evidence is as probative as direct evidence in establishing the

guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.”

Id. If the record could support conflicting inferences, we presume that the fact finder




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resolved the conflict in favor of the prosecution and defer to that resolution. Garcia, 367

S.W.3d at 687.

       2. Applicable Law
       We measure the sufficiency of the evidence supporting a conviction “by the

elements of the offense as defined by the hypothetically correct jury charge for the

case” applied to the particular facts of the case. Byrd v. State, 336 S.W.3d 242, 246

(Tex. Crim. App. 2011) (citing Malik v. State 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). Such a charge “accurately sets out the law, is authorized by the indictment,

does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the

State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Id.

       In this case, the State was required to prove beyond a reasonable doubt that

appellant, (1) intentionally or knowingly, (2) caused the penetration of the mouth of the

victim, (3) by his sexual organ. TEX. PENAL CODE ANN. § 22.021(a)(1)(B). In the context

of sexual assault of a child, “outcry” testimony alone can be sufficient evidence to

support a conviction. Rodriguez v. State, 819 S.W.2d 871, 873–74 (Tex. Crim. App.

1991); Ozuna v. State, 199 S.W.3d 601, 606 (Tex. App.—Corpus Christi 2006, no pet).

There is no requirement that the child victim testify as to penetration; the State may

prove that element of the offense by circumstantial evidence. Rodriguez, 819 S.W.2d at

873–74; Ozuna, 199 S.W.3d at 606. Even if the victim recants or denies her outcry

statements when testifying at trial, the jury is free to disbelieve the victim’s recantation

and credit her previous statements. Saldana v. State, 287 S.W.3d 43, 60 (Tex. App.—

Corpus Christi 2008, pet. ref’d) (citing Chambers v. State, 805 S.W.2d 459, 461 (Tex.

Crim. App. 1991)).

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       3. Discussion
       The following exchange occurred between S.G. and the prosecutor on direct

examination:

               Prosecutor: [D]id [appellant] ever put his front private in your
               mouth? Do you remember anything like that?

               S.G.:        No, ma’am.

       Appellant argues that even when viewing the evidence in the light most favorable

to the verdict, a rational finder of fact could not conclude that appellant violated the

statute when the victim denied on the witness stand that appellant ever committed the

alleged conduct against her. We disagree.

       Outcry statements of children, standing alone, can be sufficient to support a

conviction in sexual assault cases.      Rodriguez, 819 S.W.2d at 873–74.         If a child

recants or denies her outcry statements when testifying at trial, the jury is free to decide

which of the child’s statements to credit, as it is with any other witness. Chambers, 805

S.W.2d at 461; Saldana, 287 S.W.3d at 60. Assuming without deciding that S.G.’s

statements constituted a recantation of her outcry statements, the jury was free to

disbelieve her denial. In this case, the jury evidently gave more credit to S.G.’s outcry

statements than to that single statement during her testimony at trial. Chambers, 805

S.W.2d at 461; Saldana, 287 S.W.3d at 60.          Because S.G.’s outcry statements to

Evans—the admission of which appellant does not challenge on appeal—would be

sufficient evidence to support appellant’s conviction even if S.G. did not testify, we

conclude that the State met its burden of offering evidence from which a reasonable jury




                                             5
could conclude that appellant was guilty beyond a reasonable doubt of the charged

offense.3 We accordingly overrule appellant’s first issue.

   B. Attorneys’ Fees
       In his second issue, appellant argues that the trial court improperly assessed

$12,730.75 in attorneys’ fees despite earlier finding appellant to be indigent.                       A

defendant who is determined by the trial court to be indigent is presumed to remain

indigent for the remainder of the proceedings absent a material change in the

defendant’s financial circumstances. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West

Supp. 2011). If the trial court does assess attorneys’ fees against a defendant who it

earlier determined to be indigent, the record must reflect that the trial court heard

evidence that the defendant’s financial circumstances changed. Mayer v. State, 309

S.W.3d 552, 556–57 (Tex. Crim. App. 2010). The State concedes that the trial court

previously determined that appellant was indigent, that there is no evidence in the

record that appellant’s financial circumstances have materially changed to alter his

indigent status, and asks us to modify the judgment.                See TEX. R. APP. P. 43.2(b)

(appellate court may modify the judgment and affirm as modified). We therefore sustain

appellant’s second issue and modify the judgment to delete the $12,730.75 in attorneys’

fees from the administrative fee calculation.




       3
           Even if the outcry statements would not be sufficient standing alone, the State offered two
videotaped statements into evidence in which appellant admits to penetrating S.M.’s mouth with his
sexual organ. The outcry statements are sufficient to provide the modicum of evidence necessary to
corroborate appellant’s extra-judicial confessions. See Salazar v. State, 86 S.W.3d 640, 645 (Tex. Crim.
App. 2002) (holding that the State need only produce some independent evidence that the child victim
was sexually assaulted when the defendant made an extra-judicial confession, even when the defendant
repudiated that confession at trial). Appellant does not challenge the admission of either videotaped
statement on appeal.


                                                   6
                                      III. CONCLUSION

       We modify the judgment to delete the $12,730.75 in attorneys’ fees and affirm as

modified.



                                               _______________________
                                               NORA L. LONGORIA
                                               Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
4th day of April, 2013.




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