Cochran v. State

874 S.W.2d 769, 1994 Tex. App. LEXIS 310, 1994 WL 45530
CourtCourt of Appeals of Texas
DecidedFebruary 17, 1994
DocketNos. 01-92-1126-CR, 01-92-1127-CR
StatusPublished
Cited by6 cases

This text of 874 S.W.2d 769 (Cochran v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cochran v. State, 874 S.W.2d 769, 1994 Tex. App. LEXIS 310, 1994 WL 45530 (Tex. Ct. App. 1994).

Opinion

OPINION

HUTSON-DUNN, Justice.

Appellant was charged by indictment with three counts of aggravated sexual assault of a child. A second indictment charged him with the offense of injury to a child. A jury found appellant guilty of both charges and all counts, found the enhancement paragraph true, and assessed punishment at 30 years confinement and a fine of $5,000 for each count of aggravated sexual assault, and 20 years confinement and a $10,000 fine for the offense of injury to a child.

Appellant brings eight points of error. He asserts insufficiency of the evidence, denial of his right to confront the accuser, and double jeopardy. We affirm.

In points of error one through three, appellant asserts that the evidence is insufficient to support a finding beyond a reasonable doubt that appellant committed aggravated sexual assault. The State alleged three acts of penetration, i.e., the penetration of the child’s sexual organ by appellant’s sexual organ and finger, and the penetration of the child’s mouth by appellant’s sexual organ.

A person commits the offense of aggravated sexual assault if the person

intentionally or knowingly: (i) causes the penetration of the anus or female sexual organ of a child by any means; (ii) causes the penetration of the mouth of a child by the sexual organ of the actor; (iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or (iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor.

TexPenal Code Ann. § 22.021(a)(1)(B) (Vernon 1989).

During direct examination, the child testified that appellant touched her with his fingers outside of her vagina only, and on top of her panties, that his underwear was on when his penis touched her vagina, and that his underwear was on when his penis touched the outside of her mouth. Upon redirect, the prosecutor questioned the child further as follows:

Q: Did you ever tell Wendy that he touched your vagina with his penis without his underwear on?
A: Yes.
Q: And did you tell Wendy that he put his penis inside your vagina?
A: Yes.
Q: And did you tell Wendy that he put his penis inside your mouth without his underwear on?
A: Yes.
Q: And when you talked to Wendy, were you telling the truth or were you telling her a lie?
A: Telling her the truth.
Q: Did you tell Wendy that when he touched you with his finger that he put his finger inside your panties and inside your vagina?
A: Yes.
[771]*771Q: And when you told her about that, were you telling her the truth or a lie?
A: The truth.

Appellant argues that the evidence of penetration was impeachment testimony evidence offered by the prosecution following the child’s in-court testimony and demonstrations that did not support the allegations of penetration. Appellant cites Wall v. State, 417 S.W.2d 59, 62 (Tex.Crim.App.1967), for the proposition that impeachment testimony cannot be used as primary evidence. Without primary evidence of the facts, the evidence would be insufficient to sustain the conviction. Id. The issue here is whether or not the child’s testimony during redirect examination, where she testified that appellant penetrated her, is impeachment testimony.

Counsel impeaches a witness when he provides evidence that the witness is unworthy of belief or credit. Ransom v. State, 789 S.W.2d 572, 587 (Tex.Crim.App.1989), cert. denied, 497 U.S. 1010, 110 S.Ct. 3255, 111 L.Ed.2d 765 (1990). The State’s introduction of prior inconsistent statements of a witness called to testify on its behalf does not automatically constitute impeachment. Id. (citing Jackson v. State, 516 S.W.2d 167, 175-76 (Tex.Crim.App.1974).

The child in this case was four years old at the time she testified. When the prosecutor reminded her of her conversations with Wendy, she admitted telling Wendy that appellant had penetrated her. She did not try to explain her remarks or say they were incorrect statements. To the contrary, she readily admitted their truth. The prosecutor was not attacking her credibility. The prosecutor simply was trying to help a very young child, who was likely to be intimidated by the trial process, to express herself as she had done previously. Further, the State’s case was dependent upon the jury believing this witness. Ransom, 789 S.W.2d at 587.

We find that the State did not impeach this witness.

Having found that the child’s testimony was not impeachment testimony we can address the sufficiency of the evidence. In reviewing the sufficiency of the evidence, an appellate court must view the evidence in the light most favorable to the verdict to determine if 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, 318, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). This Court may not sit as a thirteenth juror and disregard or reweigh the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). If there is evidence that establishes guilt beyond a reasonable doubt, and the trier of fact believes that evidence, we are not in a position to reverse the judgment on sufficiency of the evidence grounds. Id.; Glass v. State, 761 S.W.2d 806, 807 (Tex.App.—Houston [1st Dist.] 1988, no pet.).

Conflicts in the evidence will not call for reversal if there is enough credible testimony to support the conviction. Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App.1986). The jury may accept portions of the testimony of a witness and reject other portions. Id. The jury is the exclusive judge of the facts proved, and of the weight to be given to the testimony. Tex.Code Crim.P.Ann. art. 38.04 (Vernon 1979). When this Court is “faced with a record of ... facts that supports conflicting inferences [we] must presume ... that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Farris v. State, 819 S.W.2d 490, 495 (Tex.Crim.App.1990), cert. denied, — U.S. —, 112 S.Ct. 1278, 117 L.Ed.2d 504 (1992) (citing Jackson, 443 U.S. at 326, 99 S.Ct. at 2793 (1979)).

The jury believed the child when she testified as to appellant’s culpability for the offense of aggravated sexual assault. Further, Dr.

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Bluebook (online)
874 S.W.2d 769, 1994 Tex. App. LEXIS 310, 1994 WL 45530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cochran-v-state-texapp-1994.