           PD-1588&1589-14                                    PD-1588-14 & PD-1589-14
                                                           COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                       Transmitted 12/22/2014 11:45:48 AM
                                                         Accepted 12/29/2014 11:58:32 AM
                                                                             ABEL ACOSTA
                                                                                     CLERK
                            In the
              Court of Criminal Appeals of Texas

        Cause No. 14-13-00796-CR& 14-13-00797-CR
                              In the
      Court of Appeals for the Fourteenth District of Texas
                           at Houston

               Cause Nos. 1344119 and 1344120
                  In the 176th District Court
                   Of Harris County, Texas


                 LUIS ROBERT GONZALEZ
                        Appellant

                               y.

                    THE STATE OF TEXAS
                          Appellee


        PETITION FOR DISCRETIONARY REVIEW



                                      Casey Garrett
                                      Texas Bar No. 00787197
                                      1214 Heights Blvd.
                                      Houston, Texas 77008
                                      713-228-3800
December 29, 2014                     Casey.garrett@sbcglobal.net
                 IDENTITY OF PARTIES AND COUNSEL

Appellant: Luis Robert Gonzalez

Counsel for Appellant at Trial:

             Frumencio Reyes
             3715 N. Main Street
             Houston, Texas 77009
             Texas Bar No. 16794400
             713-864-4700

Counsel for Appellant on Appeal:

             Casey Garrett
             1214 Heights Boulevard
             Houston, Texas 77008
             Texas Bar No. 00787197
             713-228-3800

Counsel for the State at Trial:

             Erin Epley
             Texas Bar No. 240613 89
             Terese Buess
             Texas Bar No. 03316875
             Assistant District Attorneys
             1201 Franklin
             Houston, Texas 77002
             713-755-5800

Counsel for the State on Appeal:
             Harris County District Attorney's Office
             Appellate Division
             1201 Franklin, Suite 600
             Houston, Texas 77002
             (713)755-5800

Trial Judge: The Honorable Stacey W. Bond

                                      2
                  TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL       2

TABLE OF CONTENTS                     3

INDEX OF AUTHORITIES                  4

STATEMENT REGARDING ORAL ARGUMENT     6

STATEMENT OF THE CASE                 6

STATEMENT OF PROCEDURAL HISTORY        6

QUESTION PRESENTED FOR REVIEW         7

PRAYER        :                       17

CERTIFICATE OF COMPLIANCE             18

CERTIFICATE OF SERVICE                19
                       INDEX OF AUTHORITIES



Cases

Arizona v. Fulimante, 499 U.S. 279 (1991)                             9

Berotte v. State, 992 S.W.2d 13, 17-18 (Tex. App.—Houston [l^Dist]
  1997, pet. ref d)                                                  12

Broxton v. State, 909 S.W.2d 912 (Tex. Crim. App. 1995)              9

Clark v. State, 952 S.W.2d 882 (Tex. App.—Beaumont 1997, no pet)     10

Coy v. Iowa, 4S7 U.S. 1012, 1018(1988)                               14

Crawford v. Washington, 541 U.S. 36 (2004)                           14

Davis v. Alaska, 415 U.S. 308 (1974)                                  9

Gilley v. State, — S.W.Sd— WL 128009 (Tex. Crim. App. 2014)          12

Glochzin v. State, 220 S.W.3d 140 (Tex. App.—
  Waco 2007, pet ref d)                                              10

Hollinger v. State, 911 S.W.2d 35 (Tex. App.—
 Tyler 1995, pet ref d)     ,                                        13

In re Winship, 397 U.S. 358 (1970)                                    8

Martinez v. State, 178 S.W.3d 806 (Tex. Crim. App. 2005)             10

Mays v. State, 285 S.W.3d 884 (Tex. Crim. App. 2009)                  9

Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002)                9

United States v. Wade, 388 U.S. 218 (1966)                           15

Villalon v. State, 791 S.W.2d 130 (Tex. Crim. App. 1990)             10
Watson v. State, 596 S.W.2d 867 (Tex. Grim. App. 1980)                13
Statutes
Tex. Code Crim. P. Am. art. 38.07 (Vernon 2005)                       10
Treatises

John Bradley, "New Sex Offender Crimes and Punishemnts," 70 TXBJ 768,
  769 (October 2007)                                 ,             13

Meredith F. Sopher, "The Best of All Possible Worlds: Balancing Victims'
 and Defendants' Rights in the Child Sexual Abuse Case," 63 Fordham L.
 Rev. 633, 636 (1994)                                                  10
Constitutional Provisions
Tex. Const, art. 1                                                     8
            STATEMENT REGARDING ORAL ARGUMENT

      Mr. Luis Gonzalez requests oral argument.

                       STATEMENT OF THE CASE

      Mr. Gonzalez was charged by indictment with the felony offense of

aggravated sexual assault in cause number 1344120 and the felony offense

of "super" aggravated sexual assault in cause number 1344119 (R.R.3 - 4-5;

C.R. Indictment). Mr. Gonzalez pled not guilty to both allegations and the

cases were tried together before a jury (R.R.3 — 4-5). The jury found him

guilty as charged in the indictments (R.R.6 — 130). Thereafter, the jury

assessed punishment at the statutorily imposed minimum in cause number

1344120, which is confinement for twenty-five years in the Texas

Department of Criminal Justice, Institutional Division (R.R.7 - 12). In cause

number 1344119, the jury assessed punishment at confinement for five years

in the Texas Department of Criminal Justice, Institutional Division (R.R.7 —

12). Mr. Gonzalez filed timely notice of appeal.



               STATEMENT OF PROCEDURAL HISTORY

      The Court of Appeals filed memorandum opinions affirming the

convictions on October 30, 2014.      No motion for rehearing was filed.
Pursuant to Rule 68.2 of the Texas Rules of Appellate Procedure, this

Petition for Discretionary Review should be filed thirty days after the day

the court of appeals filed its opinion. An extension motion was filed in

accordance with the Texas Rules of Appellate Procedure and this Petition is

due on December 31, 2014.

                 QUESTION PRESENTED FOR REVIEW

          If a criminal defendant is prevented from effectively cross-
          examining the witnesses against him, is the constitutional error
          under the United States and Texas Constitutions waived if he does
          not object at trial?


                               ARGUMENT

          If a criminal defendant is prevented from effectively cross-
          examining the witnesses against him, is the constitutional error
          under the United States and Texas Constitutions waived if he does
          not object at trial?

      The Due Process clause of the United States Constitution prohibits

sending a defendant to jail without providing a trial that is fundamentally

fair. In re Winship, 397 U.S. 358, 363 (1970). Likewise, the Texas "due

course of law" provision requires defendants receive a fair trial. Tex. Const,

art. 1. The fairness requirement may be violated in a number of ways, either

through the use of procedures which lack fairness, or through the denial of

specific rights guaranteed by the Constitution and applicable to the states

through the fourteenth amendment. Id. The Confrontation Clause of the
Sixth Amendment to the United States Constitution guarantees a defendant

the right to effective cross-examination. Davis v. Alaska, 415 U.S. 308, 320

(1974). Likewise, the Texas Constitution guarantees a defendant the right to

confront his accuser. Tex. Const, art. I sec. 10.

      In its Memorandum Opinion, the court below concluded, without

considering the merits, that Mr. Gonzalez did not preserve his claims under

the United States and Texas Constitutions (Mem. Op. at 8). It is true that in

most situations, a defendant must preserve his complaints about interference

with his rights to cross-examination by making an objection and, in some

circumstances, an "offer of proof which sets forth the substance of the

proffered evidence. Mays v. State, 285 S.W.3d 884, 890 (Tex. Grim. App.

2009). The court below cited Broxton v. State, 909 S.W.2d 912, 917-918

(Tex. Crim. App. 1995) as an illustration of this principle. Broxton involved

the trial court's limitations on specific areas of evidence.

      In the instant case, Mr. Gonzalez complains of an inability to conduct

any cross-examination of the complaining witness. While the necessity to

preserve error applies to most constitutional claims, Saldano v. State, 70

S.W.Sd 873, 887 (Tex. Crim. App. 2002), it does not apply to errors like the

one in this case, which are structural errors. See Arizona v. Fulimante, 499

U.S. 279,310(1991).
      Under the current applicable laws, the testimony of a child victim is

sufficient to support a conviction for aggravated sexual assault and

corroboration is not required. Tex. Code Crim. P. Ann. art. 38.07 (Vernon

2005); Martinez v. State, 178 S.W.3d 806, 814 (Tex. Crim. App. 2005).

Even the absence of physical evidence does not render the evidence

Insufficient. Glockzin v. State, 220 S.W.Sd 140, 148 (Tex. App.—Waco

2007, pet. ref d). In fact, it is widely acknowledged that physical evidence of

abuse exists in only a small percentage of cases, and witnesses in addition to

the child victim are even less common. See, e.g., Meredith F. Sopher, "The

Best of All Possible Worlds: Balancing Victims' and Defendants' Rights in

the Child Sexual Abuse Case," 63 Fordham L. Rev. 633, 636 (1994).

      Child victims of sexual crimes are afforded great latitude when

testifying and they are not expected to testify with the same clarity and

ability as is expected of a mature and capable adult. Villalon v. State, 791

S.W.2d 130, 134 (Tex. Crim. App. 1990). In cases dealing with child

witnesses, the rule against leading questions Is somewhat relaxed. Clark v.

State, 952 S.W.2d 882, 886 (Tex. App.—Beaumont 1997, no pet.).

Standards for competency are generally lax, requiring a judge merely to

form an opinion about whether or not a child-witness has the cognitive

ability to relate relevant facts, and whether or not a child-witness has the
capacity to appreciate the obligations of an oath, "or can at least distinguish

the truth from a lie." Gilley v. State, —S.W.3d— WL 128009 (Tex. Grim.

App. 2014). These are low expectations considering a child-witness who

"can at least distinguish the truth from a lie" can put a defendant in prison

for life based on his or her word alone.

      Recently, moreover, this Court indicated its willingness to accept

child-witness testimony without much of a safeguard regarding competency

or ability when it determined that a competency examination under Rule

601(a)(2) is not a "critical stage of a criminal proceeding," and affirmed a

conviction despite the fact that a trial judge conducted the competency

examination in camera with only a court reporter in attendance. Gilley v,

State, at 4. The majority opinion dismissed any serious inquiry into the

reliability of child-witnesses, asserting, "the typical inquiry into a child-

witness' capacity to relate facts and appreciate the virtue of veracity is

hardly complex." Id.

      Yet it is, demonstrably, complex. As Judge Johnson said in her dissent

in Gilley, the reality of trial for sexual assault of a child is that, unless the

child testifies at trial to events that are physically or temporally impossible,

juries tend to believe the child, and the defendant will be convicted. Gilley v.

State, — S.W.Sd— WL 128009 (Tex. Grim. App. 2014, J. Johnson,


                                       10
dissenting). As can be seen in the instant case, even in situations where

children testify to events that are physically or temporally impossible, juries

tend to convict. The complainant in this case testified "it felt like nothing,"

when she alleged Mr. Gonzalez put his private in her private and in her butt.

She claimed she never had to clean up after any of these repeated rapes, and

she testified his private looked like a "hot dog weiner," all facts that are

clearly at odds with what every juror knows from personal experience about

adult sexual experience. She testified nothing ever came out of his private.

She told her doctor he "raped her every Saturday," and then testified at trial

it might have happened four times, perhaps.

      Courts and juries are reluctant to discount the testimony of child-

witnesses in sexual abuse cases regardless of how inarticulate or uncertain

the witnesses are. In Berotte v. State, a four year-old child-witness

frequently nodded or shrugged in response to questions, her best verbal

answers were in response to leading questions, and much of her testimony

was contradictory and confusing, but the appellate court determined it was

not an abuse of discretion to permit her to testify. Berotte v. State, 992

S.W.2d 13, 17-18 (Tex. App.—Houston [1st Dist] 1997, pet ref d). The

court found she appeared to have the intellectual ability to relate events and

to understand the obligation to be truthful. Id. The complainant in the instant



                                      11
case, at nine years old, might arguably have had the required capacity to

narrate, understand questions asked, frame intelligent answers to those

questions, and understand a moral responsibility to tell the truth. Watson v.

State, 596 S.W.2d 867, 870 (Tex. Crim. App. 1980); Hollinger v. State, 911

S.W.2d 35, 3839 (Tex. App.—Tyler 1995, pet. ref d). But the child-witness

was testifying about events she claimed had happened to her as much as two

or three years before, when she was a child in Kindergarten or perhaps

preschool. Anyone who has spent any time with a child knows that even

traumatic events are quickly forgotten or altered in the mind of a young

child.

         Even the most ardent of advocates in favor of loose rules for

prosecution of child sex abuse cases acknowledge that child-witnesses are

problematic. Prosecutor and commentator John Bradley says, "The standard

process of relying on children as witnesses to prove sexual offenses has long

been troublesome. Children... do not recall each act of sexual abuse with the

same sort of pinpoint recollection as adults." John Bradley, "New Sex

Offender Crimes and Punishments," 70 TXBJ 768, 769 (October 2007). All

of these generalized problems with child-witnesses are exacerbated in cases

where the child has had events and instances suggested to them prior to trial

by parents, interviewers or other members of the pretrial team.


                                      12
      "Recent findings indicate that interviewing methods designed to

discover the truth in these cases may in fact irretrievably bury that truth. In

one highly publicized study, children aged four to six were repeatedly

questioned about events that had not occurred. By the eleventh week, fifty-

six percent of the children claimed that at least one false event was true."

Meredith F. Sopher, "The Best of All Possible Worlds: Balancing Victims'

and Defendants' Rights in the Child Sexual Abuse Case," 63 Fordham L.

Rev. 633, 644-645 (1994). What's more, child abuse professionals were able

to discern which statements were false only one-third of the time. Id.

      The intent of the Sixth Amendment was to test the reliability of out-

of-court testimonial statements in one manner alone — "the crucible of cross-

examination." Crawford v. Washington, 541 U.S. 36, 61 (2004). More than

two decades ago, Justice Scalia devoted the better part of an opinion to a

history of the Confrontation Clause, citing the Bible, Shakespeare and

President Eisenhower to "illustrate...both the antiquity and the currency of

the human feeling that a criminal trial is not just unless one can confront his

accusers." Coy v. Iowa, 487 U.S. 1012, 1018 (1988). But the passion with

which Scalia defended the right to confront one's accusers is wasted in

situations where accusers are young children with limited memories, almost




                                      13
no life experience, and plenty of adults suggesting and shaping the child's

testimony in an earnest attempt to help them.

      It has long been acknowledged that testimony based on suggestive

pretrial procedures violates due process. United States v. Wade, 388 U.S.

218 (1966) (due process violated after suggestive eyewitness procedure).

Children are inherently suggestible. In the instant case, the child-witness

agreed on cross-examination that she'd met with doctors, therapists and

members of the prosecution prior to trial to review the video she'd made

after her outcry and to talk about her testimony (R.R.5 - 87). She testified

during trial that Mr. Gonzalez had made inappropriate sexualized comments

about her body during dinner at her grandmother's house, but then revealed

that she didn't understand the comments indicating that someone else, her

mother or grandmother or another adult at dinner, had told her about them

(R.R.5 — 60-61). She testified she knew her mother had been raped, and her

mother testified she'd talked about rape with her young daughter on many

occasions, that it was therapeutic for her to discuss her own childhood sex

abuse with her extended family, and that her daughter knew her abuser had

gone to jail (R.R.3 - 33-35, R.R.5 - 50).

      The trial boiled down to the testimony of the child-witness and Mr.

Gonzalez' testimony, as in many child sex abuse cases. There was no


                                     14
physical or forensic evidence and nothing but bolstering evidence on both

sides to contradict the stories each of the parties told, hi this case, the jury

was asked to make a straight credibility determination between two

strangers: a lovely, precocious nine-year old girl and a middle-aged male

defendant. The only defense in such a case is cross-examination. But cross-

examination can never be effective when the rules are loosened and

expectations for general standards of credibility and competency are relaxed

due to the fact that the complainant is a young child. To the extent a

defendant can effectively cross-examine a child, the testimony of a child that

has been suggested through interviews, coaching, and refreshing of a child's

"memory" presents an impossible challenge for any defendant, and violates

his rights to confrontation under the United States Constitution.

      The stakes in child sex abuse cases are unprecedented. The minimum

sentence for "super" aggravated sexual assault, one of the convictions in this

case, is twenty-five years, and "there is no provision for early release. None.

Parole is abolished, requiring the defendant to serve every day of his

sentence." Bradley at 771. "But just in case a sex offender should live long

enough to discharge the sentence, lawmakers went even further. A second

conviction for continuous sexual abuse is punished by life in prison. A

second conviction for super-aggravated sexual assault is punished as a


                                       15
capital felony: life in prison or death by injection. Sex offenders who harm

children will face longer prison sentences, no parole, no probation, relaxed

procedural standards for conviction, and maybe the death penalty." Id.

Under such circumstances it is vitally important to ensure that the defendants

who face such penalties are, in fact, guilty of committing these crimes.

Protections like the hallowed ones in the Sixth Amendment become crucial.

      The instant case was a swearing match between a fourth-grade child

with an emotionally wrenching story of childhood abuse and a mother who

trained her about the meaning of "rape" when she was less than five years

old, and a middle-aged apartment maintenance man with no remaining

connection to her family. The jury took 14 hours to decide whether or not to

convict, and then assessed the minimum in both cases. Because of the

changes in the law, however, the minimum means twenty-five years without

parole. Mr. Gonzalez opportunity to cross-examine the child-witness,

coached and interviewed from the time she was seven years old, was

meaningless. His conviction was a violation of due process and this court

should reverse and remand for a new trial.




                                      16
                                 PRAYER

      Appellant respectfully prays this Honorable Court to grant his petition

for discretionary review.



                                            Respectfully submitted,



                                                 /s/Casey Garrett
                                             Casey Garrett
                                             Texas Bar No. 00787197
                                             1214 Heights Blvd.
                                             Houston, Texas 77008
                                             713-228-3800
                                             Casey.garrett@sbcglobal.net




                                     17
                    CERTIFICATE OF COMPLIANCE

      This is to certify that the petition for discretionary review has 3,007

words in compliance with Rule 9 of the Texas Rules of Appellate Procedure.




                                                  _/s/Casey Garrett_
                                              Casey Garrett
                                              Texas Bar No. 00787197
                                              1214 Heights Blvd.
                                              Houston, Texas 77008
                                              713-228-3800
                                              Casey.garrett@sbcglobal.net




                                       18
                       CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been sent

through the e-file system to the following party:

Harris County District Attorney's Office
Appellate Division
1201 Franklin, Suite 600
Houston, Texas 77002




                                                 _/s/Casey Garrett_
                                             Casey Garrett
                                             Texas Bar No. 00787197
                                             1214 Heights Blvd.
                                             Houston, Texas 77008
                                             713-228-3800
                                             Casey.garrett@sbcglobal.net




                                      19
                                                                  October 30, 2014




                                 JUDGMENT

                                        (Exmrt of
                   LUIS ROBERTO GONZALEZ, Appellant
NO. 14-13-00796-CR                          V.
NO. 14-13-00797-CR

                       THE STATE OF TEXAS, Appellee




      This cause was heard on the transcript of the record of the court below.
Having considered the record, this Court holds that there was no error in the
judgment. The Court orders the judgment AFFIRMED.
      We further order appellant pay all costs expended in the appeal.
      We further order this decision certified below for observance.
Affirmed and Memorandum Opinion filed October 30, 2014.




                                      In The

                                     Court of

                              NO. 14-13-00796-CR
                              NO. 14-13-00797-CR

                  LUIS ROBERTO GONZALEZ, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 176th District Court
                            Harris County, Texas
                  Trial Court Cause Nos. 1344119 & 1344120

                 MEMORANDUM                      OPINION


      Appellant Luis Roberto Gonzalez appeals his convictions for aggravated
sexual assault of a child under the age of six (sometimes referred to as "super"
aggravated sexual assault) and aggravated sexual assault of a child under the age of
fourteen. In two issues appellant challenges the sufficiency of the evidence to
support his conviction for "super" aggravated sexual assault and his right to
effective cross-examination. We affirm.
                   I. FACTUAL AND PROCEDURAL BACKGROUND
      The record reflects that the complainant's first outcry came on May 30,
2011, when the complainant told her mother that "Ricky raped me." The mother
explained that "Ricky" was the name she and the complainant used for appellant.
The complainant later explained that appellant had "put his private in the hole in
her private" and described other specific incidents of sexually abusive conduct.

      At the time of the outcry, the complainant was seven years old. The
complainant told her mother that on Saturdays before art class, appellant would
have the complainant perform oral sex on him, and then Avould tell her she could
have a snack before leaving for art class.

      The complainant's mother met appellant when the complainant was
approximately two years old. About six months later, appellant moved in with the
mother and the complainant. When the complainant was three years old, the
mother and appellant moved to a two-story apartment. When first describing the
sexual abuse, the complainant explained that it happened in the two-story
apartment when the complainant was four or five years old. The complainant was
in kindergarten when she attended Saturday art classes, and was five years old at
the beginning of the school year, turning six in October.

      Officer B. A. Morrow of the Houston Police Department and the Children's
Assessment Center (CAC), reviewed the complainant's CAC forensic interview.
Morrow testified that the complainant "was able to divide how old she was or
believed herself to be when things occurred to her," and that she used the
apartments in which she lived to identify time frames. Based on his investigation
and the complainant's statements, Morrow determined that the alleged abuse began
while the complainant was in preschool. Morrow remembered that the complainant
tied the abuse to an apartment with a staircase.
                                             2
      The complainant, who was nine years old at the time of trial, testified using
anatomically correct dolls. The complainant testified that when she was living in
the two-story apartment, on a Saturday she was sitting in the living room watching
cartoons. The complainant described this two-story apartment as "the big house."
Appellant came into the living room and closed the blinds. Appellant was wearing
boxer shorts and a t-shirt Appellant laid down on the couch with the complainant,
placed his hand under her clothing, and touched her bottom. Appellant also pulled
down his boxer shorts, took off the complainant's tights and underwear, and
penetrated the complainant's vagina with his penis. During this same incident, the
complainant testified appellant penetrated her anus with his penis. The complainant
also testified to another incident in the same two-story apartment when appellant
penetrated her vagina with his penis. The complainant testified that appellant
contacted her vagina and anus with his hand on several occasions at both
apartments. Appellant also had the complainant perform oral sex on him while they
lived in the two-story apartment.

      On cross-examination, the complainant testified that the incidents began to
happen "around August 30, 2009 [.]" The complainant explained that she did not
outcry sooner because she was afraid of what appellant might do to hurt her or her
mother. Defense counsel asked the complainant about watching the video of her
forensic interview. The complainant testified she had watched the video recently,
but affirmed that her memory of the events was independent of her memory of the
video. Counsel questioned the complainant about whether she had reviewed her
testimony with prosecutors. The complainant admitted that she had done so, but
she stated that her account of events was not changed by that review.

      Appellant testified that the complainant's mother began living with him in
2005. Appellant denied sexually assaulting the complainant. He further testified
that he did not take her to art classes on Saturdays because he was working.

      The jury found appellant guilty as charged in the indictments and assessed
punishment at 25 years in prison on each count. The trial court ordered appellant's
sentences to run concurrently.

                              II. ISSUES AND ANALYSIS

      A. Is the conviction supported by sufficient evidence?

      In his second issue appellant complains he was denied his right to due
process because he was convicted of "super" aggravated sexual assault of a child
under the age of six despite insufficient evidence that the child-complainant was
under the age of six at the time of the alleged conduct. While appellant couches his
complaint in terms of denial of due process, his issue raises the question of whether
the evidence is sufficient to support a finding that the complainant was under six
years old at the time of the offense.

      In evaluating a challenge to the sufficiency of the evidence, we view the
evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d
103, 111 (Tex. Crim. App, 2000). The issue on appeal is not whether we, as a
court, believe the State's evidence or believe that appellant's evidence outweighs
the State's evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App.
1984). Rather, the verdict may not be overturned unless it is irrational or
unsupported by proof beyond a reasonable doubt. Matson v. State., 819 S.W.2d
839, 846 (Tex. Crim. App. 1991). The trier of fact is the sole judge of the
credibility of the witnesses and of the strength of the evidence. Fuentes v. State,
991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose to
believe or disbelieve any portion of the witnesses' testimony. Sharp v. State, 707
S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence,
we presume the trier of fact resolved conflicts in favor of the prevailing party.
Turro v. State, 867 S.W.2d 43, 47' (Tex. Grim. App. 1993). Therefore, if any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex.
Grim. App. 1997).

      A person commits the offense of "super" aggravated sexual assault of a child
if the person intentionally or knowingly causes the penetration of the sexual organ
of a child under the age of six, by any means. See Tex. Penal Code Ann. §§
22.021(a)(l) (B)(i), (iv) (West 2011). See also Tex. Penal Code Ann. §§
22.021(f)(l) (West 2011). In this case, appellant was indicted for aggravated
sexual assault of a child under the age of fourteen, and "super" aggravated sexual
assault of a child under the age of six. Appellant does not challenge the sufficiency
of the evidence to support his conviction for aggravated sexual assault of a child
under fourteen. With regard to the charge of "super" aggravated sexual assault of a
child, the indictment alleged that on or about August 30, 2009, appellant
intentionally or knowingly caused the penetration of the sexual organ of the
complainant, a child who was then younger than six years of age.

      The complainant was born October 23, 2003; she was five years and ten
months old on August 30, 2009. Appellant claims that "neither the complainant nor
her mother could testify with any certainty about when the alleged conduct took
place."

      The record reflects that the complainant testified the incidents began to
happen "around August 30, 2009 [.]" In interviews at the CAC and with police
.officers, the complainant testified that the incidents occurred while she was
attending art classes and lived in the apartment with the staircase.1 The
complainant, her mother, and appellant moved often due to appellant's
employment with the apartment complexes.

       Using pictures of the apartment complexes, the complainant identified The
Park at Woodwind Lakes and Woodway Square Apartments as the apartments in
which she lived when the incidents of sexual assault took place. The complainant
did not make specific reference to her age at the time of the incidents, but she
testified to the location where the incidents occurred. The complainant's mother
testified that they lived in The Park at Woodwind Lakes when the complainant was
four or five years old. The complainant, her mother, and appellant testified that
they moved into Woodway Square Apartments in 2009, when the complainant was
five years old. They each testified that the complainant attended art lessons on
Saturdays while they lived at Woodway Square Apartments. At The Park at
Woodwind Lakes, the parties lived in a two-story apartment with an indoor
staircase. At Woodway Square Apartments, they lived in an upstairs unit, which
had an outdoor staircase.

       The testimony of a child-complainant, standing alone, is sufficient to support
a conviction for sexual assault. See Tex, Code Grim. Proc. Ann. Art. 38.07 (West
2011); Villalon v. State, 791 S.W.2d 130, 134 (Tex. Grim. App. 1990) (concluding
a child-complainant's unsophisticated terminology alone established element of
penetration beyond a reasonable doubt). Despite the complainant's failure to testify
to her exact age, she offered enough details to support the finding that she was
under the age of six at the time appellant penetrated her vagina and anus on a
Saturday while living in the apartment at The Park at Woodwind Lakes. See

        1 When the complainant refers to "the apartment with the staircase" she is referring to the
unit at The Park at Woodwind Lakes, sometimes referred to by the complainant's mother as "the
townhome."
Bargas v. State, 252 S.W.Sd 876, 888 (Tex. App.—Houston [14th Dist] 2008, no
pet.). The complainant's mother supplied the chronological context necessary to
determine the complainant's age at the time of the events the complainant
recounted.

      The jury heard the complainant's testimony and weighed her imperfect
perception of time as to when the abuse occurred. The jury judged the credibility of
the witnesses and reconciled conflicts in the testimony, and could have accepted or
rejected any or all of the evidence on either side. See Fuentes, 991 S.W.2d at 271;
Sharp, 707 S.W.2d at 614. In a sufficiency review, any inconsistencies in the
testimony should be resolved in favor of the jury's verdict. Johnson v. State, 815
S.W.2d 707, 712 (Tex. Grim. App. 1991). We conclude that when the evidence is
viewed in the light most favorable to the verdict, the jury, as a rational trier of fact,
could have determined that the abuse described by the complainant, which-
occurred while the child was watching cartoons on a Saturday morning, occurred
when the complainant was under six years old. See McDuff, 939 S.W.2d at 614.

      The evidence presented is sufficient to support appellant's conviction for
super aggravated sexual assault of a child under the age of six. Appellant's second
issue is overruled.

      B. Did appellant preserve error regarding his argument that he was
denied his right to due process when he was denied his right to effective cross-
examination of the child witness?
      In appellant's first issue, he complains that he was denied his right to due
process under the United States and Texas Constitutions when he was denied his
right to effective cross-examination because the witness against him was a child
subjected to allegedly suggestive pretrial procedures. The State responds that
appellant failed to preserve error in the trial court on this issue.
      To preserve a complaint for appellate review, a party must present to the
trial court a timely, specific request, objection, or motion, and obtain a ruling. Tex.
R. App. P. 33.1 (a). An appellate contention must comport with the specific
objection made at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Grim. App.
2002). Even constitutional errors may be waived by failure to object at trial.
Broxton v. State, 909 S.W.2d 912, 917-18 (Tex. Grim. App. 1995). The record
does not reflect that appellant asserted in the trial court that he was denied a right
to effective cross-examination. The record reflects that appellant vigorously cross-
examined the complainant. We conclude appellant failed to preserve error on this
issue. See id. Accordingly, we overrule appellant's first issue.

      The trial court's judgment is affirmed.




                                        /s/     Kem Thompson Frost
                                                Chief Justice



Panel consists of Chief Justice Frost and Justices Christopher and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).
