### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00480- CR

William Thom as Watts, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO NCHO CO UNTY, 119 TH JUDICI AL DISTRICT NO. DIS- 08- 0165 4, H ONO RAB LE B EN WO ODW ARD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Following a bench trial, th e district court found appellant Wil liam Thomas Watts g uilty of the offe nse of ag g rava ted sexual assault o f a child and assessed punishment at 50 y ear s’ imprisonment. I n three issues on appea l, Watts asser ts t h at t he dis trict court abused i ts discretion in deny ing his motion to suppress evidenc e and in deny ing his motion for a continuance , and that the evidenc e is insufficient to support the district court’s finding of g uilt. Additionally , throug h our own revie w of the rec ord, we have found a cler ical err or in the written judgme nt of conviction. We will modify the judg ment to corre ct the cle rica l error and, as modified, a ffirm the judg ment.

BACK GR OUND Watts was char g ed with sexu al l y assaulti ng his daug hter, who was approximately nine y ear s old at the time of the alleg ed offe nse. The evidenc e considere d by the district court during trial, which we discuss in more de tail below as it is rele vant t o Watts’s issues on appea l, included the testimony of the victim, V.W.; Mary Watts, the victim’s mother; Kathy Sparks, a sexual assaultnurse examiner; Serg eant Matt Mull of the Texas Depa rtment of Public Safety , the law-e nforc ement office r who had interviewe d Watts; and Watts, who testified in his defe nse. Additionally , Watts’s written statement to law enfor ceme nt, in which he admitted to sexually touchi n g and exposi ng himself to his daug hter (but denied having “interc ourse” with h er ), wa s admitted into evidenc e,

over a pretria l motion to suppress filed by Watts. After hear ing the evidenc e, the district court found Watts guilty

as cha rg ed and a ssessed punishment as noted a bove. This appe al followed.

ANALYSIS Motion to supp ress

I n his first issue, Watts asser ts that the district court abused its discretion in deny ing his motion to suppress the statement that he provided to law enfor ceme nt. Specifica lly , Watts asser ts that the statement wa s not knowingly and voluntarily

made. “I n revie w of a trial court’s ruling on a motion to suppress, an appe llate cour t must apply a standa rd of abuse of discretion and overturn the trial court’s ruling only if it is outs ide the

zone of rea sonable disag ree ment.” Martinez v. State , 348 S.W .3d 919, 922 (Tex. Crim. App. 2011) (citing State v. Dixon , 206 S.W .3d 587, 590 (Tex. Crim. App. 2006)). We are to apply a bifurcated standard of revie w, g iving almost total defe renc e to a trial court’s deter mination of historic fac ts and mix ed questions of lawand fa ct that re ly upon the cr edibility of a witness, but apply ing a de novo standard of

revie w to pure que stions of law and mixed questions that do not depend on cr edibility deter minations. Id

. (citing Guzman v. State , 955 S.W .2d 85, 87-89 (Tex. Crim. App. 1997)). When

re v i ew i n g a t ri al court’s ruling on a motion to suppress, we view the evidenc e in the light mos t favor able to the ruling

. State v. Robinson , 334 S.W .3d 776, 778 (Tex. Crim. App. 2011) (citing State

v. Kelly , 204 S.W .3d 8 0 8 , 8 1 8 (Tex

. Crim. App. 2006)). “We will sustain the trial court’s ruling 2if that ruling is ‘re asonably supported by the record and is corr ect on any theory of law applicable
t o the case .’” Valtierra v. State , 310 S.W .3d 442, 448 (Tex. Crim. App. 2010) (quot i n g Di xo n , 206 S.W .3d at 590).

On ap p eal, Watts asser

ts that the district court abused its discretion in finding that his statement was voluntary

. See U.S. Const. amend. XI V; Tex. Code Crim. Proc. arts. 38.21, .22. 1 A statement is “involuntary ,” for the purposes of fede ral due proce ss, only i f t here was officia l,

coer cive con d u ct of such a nature that any statement obtained there by was unlikely to have been the product of an essentially fre e and unconstraine d choice by its maker

. See Colorado v. Connelly , 479 U.S. 157, 164-65 (1986); Alvarado v. State, 912 S.W .2 d 1 9 9 , 2 1 1 (Tex

. Crim. App. 1995). Under sta te law, a involuntariness claim need not be predic ated on police overr eac hing of the sort require d under fede ral due-pr ocess an aly sis. Oursbourn v. State , 259 S.W .3d 159, 171 (Tex. Crim. App. 2008). I nstead, “the focus is upo n wh et h er the defe ndant voluntarily made the st at ement. Period.” Id

. The deter mination as to whether a confe ssion was voluntarily rende red must be analy

zed by examining the totality of the circ umstances. Arizona v. Fulminante , 499 U.S. 279, 285-86 (1991); Delao v. State , 235 S.W .3d 235, 239 (Tex. Crim. App. 2007). Relevant fac tors to co n sider when deter

mining whether a statement is voluntary include, but are not limit ed to, whether the defe ndant rec eived Miranda war nings; the defe ndant’s ag e, inte lligenc e level, education and mental state; the conditions under which the defe ndant wa s q u est ioned (i.e., duration,

At the suppression hear ing, t h er e wa s al so some dispute as to whether Watts was in 1 custody , there by implicating the require ments of Miranda v. Arizona , 384 U.S. 436 (1966). There is no dispute on appeal a s to whether Watts was in custody for purposes of Miranda

. At any rate , the record reflec ts that the Miranda war nings were provided to Watts prior to his statement bei ng taken. See id

. at 469-70; see also Tex. Code Crim. Proc. art. 38.22, §§ 2, 3. Thus, the district court would not have a

bused its discretion in finding that the statement wa s admissible on that gr ound. 3environment and acc ess to restroom fac iliti es and food); and whether the defe ndant was phy sically

punished for failing to provide a statement, such as being deprive d of food or sleep. See Schnec kloth v. Bustamonte , 412 U.S. 218, 226 (1973); Oursbourn , 259 S.W .3d at 172-73.

At the s u p p re s s ion hear ing, the district court hear d testimony from Watts; Serg eant Mull, the office r who took W at t s ’s s t atement; and Deputy Chad Miller of the Concho County Sheriff’ s Offic e, the office r who had transporte d Watts to the Runnels County J ail, wher e the s t atement was taken. Miller testified that Watts had set up an appointment to take a poly g raph examination and th at W at t s “m et me here at the courthouse to fill out paper work and asked me if I could g ive him a ride to Ba llinger wher e the examiner was located.” Miller explained that Watts was not under arr est or in custody at that time and that Watts wanted to take the poly g raph examination. Howeve r, Watts had informed Miller “that his vehicle was not running at the time and he neede d a ride.” During the drive to Ba llinger , Miller explained, Watts was in the same clothing he had w orn to the cour

thouse, was not handc uffe d in Miller’ s vehicle, and was riding in the front passeng er seat. Once they arr ived at the j ail, they met with Mull in t h e l o b b y ar ea of t he jail, and then M i l l er we nt elsewhe re in the jail while the interview betwee n Mull and Watts took place

. Miller returne d when Mull took Watts’s written statement, and provided a witness signa ture at the bottom of the statement.

Mull testified that his interview with Watts took place in what Mull identified as the “tra ining room” of the jail. Mull ag ree d with the prosec utor’s statement that the interview “had been

arr ang ed as a voluntary meeting ” and that Watts was not i n h an d cuffs or in custody during the interview. Mull explained that he had not been involved in the investiga tion of the case up until that point but was aware of t he bac kg round of the c ase. Mull testified t hat, prior to beg inning the

4interview, he provided Watts with two war ning forms

. M u l l explained, “The first form that we complete i s y o u r b as i c Miranda war ning. The second form is the poly g raph consent form. Both forms indicate that this is a voluntary meeting and that h e’ s fr ee to leave any time he wants. The poly g raph consent advises him who the re s u l t s will be rele ased to.” A copy of what Mull had i d enti fied as the “

Miranda form” was admitted into evidenc e. The form contained eac h of t h e require d war

nings, including that the person had th e ri gh t t o rema in silent; that any statements he made could be used ag ainst him in court; that he had a rig ht to have a lawy er prese nt and that, if he could not aff

ord a lawy er, he had a rig ht to be appointed one; and that he had a rig ht to terminate or stop the interview at any time. The initials “BW” a ppear ed next to each wa

rning . Mull identified these initials as belong ing to Watts, who g oes by the first name “B ill” or “B illy .” Also included on the fo rm wa s the statement, “I knowing ly , intelligently , and voluntarily waive those rig hts set forth in the document.” The initials “B W” appea red next to the statement, and what was identified

as Watts’s signa ture appea red immediately below the statement. Mull also testified that he had

rea d eac h of these war

nings to Watts, that Watts d i d n o t h ave any questions about the war nings,

an d t h at W at t s indicated that he understood eac h war ning. Acc ording to Mull, he had no troubl e communicating with Watts and that Watts spoke the Eng lish lang uag e, did not appea r intox icated, and did not ap p ea r i m p ai re d in any way . Howeve r, Watts did inform Mull that, althoug h he had g radua ted from high school, he could only “re ad a littl e” and that he “wa sn’t comforta ble writing .” To acc ommodate any difficulties Watts might have had with rea ding and writing , Mull “complete d the statement for

him as he told me” a

nd rea d to Watts what Mull had written. Mull fu rther testified that, afte r providing Watts with the Miranda war nings, he proce eded to administer a poly g raph examination. Then, afte r the examination was complete, Watts

5provided his statement. The form on which the statement was written contained the same war nings that Watts had ear lier rec eived, and Mull testified that he ag ain explained those war nings to Watts. Acc ording to Mull, Watts ag ain indicated that he understood eac h of the war nings, had no questions about them, and indicated that he wanted to wa ive his rig hts a nd provide a statement. The written statement is three pag es long and, at the bottom of eac h pag e, Watts provided his signa ture. Mullen testified that at no point during the interview did Watts indicate that he no longe r wanted to continue the interview, ask for a lawy er, or indicate that he did not understand what wa s go i n g on. When asked to descr ibe how he went about writing the statement for Watts, Mull explained, “I t wa s a direc ted statement. He had made those statements prior dur ing [sic] the interview, and the n when he ag ree d to g ive the written statement, I told him that we would g o back throug h his story and,

as he told me, I would write it.” Mull also testified that, at the conclusion of the statement, he rea d it in its entirety to W at t s , an d W at t s did not ask to make any chang es or adjustments to it. Mull added that at no point did he feel l ike W atts was disoriented, confuse d, or h av i ng difficulty either understanding Mull or making himself unde rstood.

On cross e x amination, Watts elicited testimony from Mull conce rning the duration of t he int ervie w. Acc ording to Mull, t h e Mi randa war nings were first rea d to Watts at 1: 24 p.m., the poly g raph examination beg an at 2:42 p.m. and ended at 3:27 p.m., and the subsequent interview beg an at 3:40 p.m. and conclude d at 5:23 p . m . Be tween 3:27 p.m. and 3:40 p.m., Mull testified, h e was “scor ing the poly g raph char ts, taking a short brea

k, [and] g etting a drink,” whil e W at t s “proba bly went to the lobby .” Mull testified that at no point during this time did Watts ask to leave

. Watts, in his testimony , disputed cer tain aspec ts of Mull’s testimony

. For example, Watts testified that, afte r he had completed the poly g raph examination, he told Mull that he wanted

6to leave , but Mull told him that “he had some other questions that he wanted to ask.” W at t s also

claimed that he was not permitted to leave and that he did not walk out of the interview “bec ause the office r said not to leave .” Watts also testified that he noticed that Deputy Miller had a wea pon and

was wea ring his uniform. Watts further d en i ed h av i n g rea d the statement prior to signing it and claimed that he had signe d the statement wi t hout understanding it. Watts acknow ledg ed that he understood that he had a rig ht to rema in silent and not make any statement at all, but he claimed that he was not a dvised of his othe r rig hts. On cross examination, Watts a dmitted that this wa s not the first time he had been interviewe d by law enfor ceme nt, that he rea d well enoug h to pass his written 2 driver’ s test in high school, and t h at h e h ad a bank acc ount and filed his own income tax return. Watts also admitted that no one had threa tened him during the interview and that he had reque sted the interviewwith Mull.

On this rec ord, we cannot conclude that t h e d i s t ri ct court abused its discretion in f inding that the statement wa s voluntary . There was disputed testimony as to w hether all of the

war nings wer e explained to Watts, whether he under s t o o d h i s rig hts, whether he asked to leave afte r the poly g raph examination was completed, and whether h e u n d er stood his statement prior to s i gn i n g i t. Howeve r, the district court could have rea sonably found Mull’s testimony to be

cre dible and Watts’s testim o n y t o n o t b e cre dible, espec ially in light of Watts’s prior experience with law enfo rc em en t , and we are to g ive almost total defe renc e to the district court’s cre dibilit y deter minations at a suppression hear ing. Also, there was other evidenc e at the suppression hear ing that was undisputed, including that Watts was not threa tened by law enfor ceme nt, that he understood

Evidence was admitted tending to show that, y ear s ear lier, Watts had p re v i o u s l y been 2 convicted of the fel ony offe nse of injury to a child, specific ally his stepdaug hter, and had been sentenc ed to three y ear s’ imprisonment for that off ense. 7that he had a rig ht to rema in silent and to not make any statement, that he had reque sted the interview

wi th Mull, that he had voluntarily acc ompanied Deputy Miller to the interview, and t h at h e h ad initialed the war

nings and signe d eac h pag e of the statement. Additionally , the interview itself lasted

a total of four hours, and there is no indication in the rec ord that Watts was phy sically restra ined or deprive d of any nece ssities during that time. Ba sed on the totality of the circ umstances summarized above, the district court’s deter mination that Watts’s statement was voluntary was “re as o n ab l y supported by the rec ord” and was not “outside the zone of rea sonable disag ree ment.” Acc ording ly ,
we cannot conclude that the d i s t ri ct co u rt abused its discretion in deny ing Watts’s motion to suppress. We over

rule Watts’s first issue.

Motion for continu ance

I n his second issue, W at t s asserts that the district court abused its discretion in deny ing his motion for continuance

. During Watt’s cross-e x amination of Kathy Sparks, the sexual assault nurse examiner (SANE) in the case, defense counsel l ear ned for the first ti m e t h at , d u ri ng Sparks’s visual examination of the victim’s sexual org an, she had taken photogr aphs of the victim’s sexual org an and had re viewed those photogr aphs in prepa ration for her trial testimony

. Sparks acknow ledg ed that she did not furnish copies of these photogr aphs to the District Attorney ’s Offic e,

nor did she bring copies of them with her to tr i al

. S p ar k s further testified that the photogr aphs

we re maintained and kept in a computer at the hospital wher e she was employ ed. Upon lear n i n g of this information, Watts soug ht a continuance in order to obtain and examine the photogr aphs. The State opposed the motion, and the d i s t ri ct co urt, afte r hear ing arg ument from the parties, denied the motion.

8After trial has beg un, a trial court may g rant a motion for continuance “whe n it is

made to appea

r t o t h e satisfac tion of the court that by some unexpected occur renc e since the trial beg an, which no rea sonable dil ige nce could have a nticipated, the a

pplicant is so taken by surprise that a fair trial cannot be had.” Tex. Code Crim. Proc. art. 29.13. We revie w a trial court’s ruling on

a motion for continuance for abuse of discretion. Gallo v. State , 239 S.W .3d 757, 764 (Tex. Crim. App. 2007); Janec ka v. State , 937 S.W .2d 456, 468 (Tex. Crim. App. 1996). To establish an abuse of discretion in this context, an appellant must show (1) that the trial court err ed by deny ing his motion for continuance and (2) that he was harme d by t h e d en i al o f a continuance

. Gonzales

v. State , 304 S.W .3d 838, 843 (Tex. Crim. App. 2010); Janec ka , 937 S.W .2d at 4 6 8

. T o s at i s fy the first prong , an appellant must show that “the case made for delay was so convincing that

no rea sonable trial judge could conclude that scheduling and other considera tions as well as fairne ss t o t h e S t ate outweig hed the defe ndant’s interest in delay of the trial.” Gonzalez , 304 S.W .3 d at 843 (quoting Geor g e E. Dix & Robert O. Dawson , 4 2 Tex. Prac. Series: Criminal Practice and Procedur e § 28.56 (2d ed. 2001)). To satisfy the second prong , an appellant must show that
t h e trial court’s ruling actua lly prejudice d his defe nse. Janec ka , 937 S.W .2d at 468; Heiselb et z v. Stat e , 906 S.W .2d 500, 511-12 (Te x . Crim. App. 1995). I t is not enough tha t the appellant was theore tically

harme d; rather , a showing must be made on the record that the l ack of a c ontinuance denied a ppellant a f

air trial. See G onzales , 304 S.W .3d at 842-43. On this rec ord , we ca n n ot conclude that the district court abused its discretion in deny ing the motion for continuance

. Pursuant to the district court’s discovery order , Sparks was listed as a witness for the State and a copy of her written repor t was rec eived by defe ns e co u nsel prior to trial. Thus, the district court could have rea sonably conclude d that defe nse counsel had prior

9notice of Spar ks’s examination procedur es and finding s, including that she had visually examined the child’s sexual org an, and throug h rea sonable diligenc e should have anticipated t h at S parks might have taken photogr aphs during the examination. Also, the rec ord ref lect s t h at m o st of Sparks’s testimony was based on her own observa tions of the child’s sexual org an, not on her revie w of the photogr aphs. Sparks testified t hat she had visually observe d the victim’s hy men to be thin and irreg ular. I n Spark’s opinion, this observa tion was consistent with penetr ation by a male sexual org an. Sparks testified that she had observe d the trauma to the child’s hy men even without the

use of a colposcope , the devi ce t h at is used to take pictures of a child’s sexual org an. On crossexamination, Sparks admitted that there coul d b e o t h er explanations for the irreg ular shape of the hy men, s uch as a conge nital defe ct or self-injury by the vi ctim. W at t s wa s ab le t o elicit these admissions from Sparks even without defe nse counsel having had an opportunity to revie w the photogr aphs. Also, Sparks testified that she did not know how many photogr aphs she had taken of the victim’s sexual org an, but only on one o f t h e p h o t og raphs was there any evidenc e of trauma to the org an. Thus, the district court would not h ave abused its discretion in finding that the photogr aphs wer e not so important to the case that, without having acc ess to them, Watts would be denied a fair t rial. As the S tate observed during the hear ing, the photogr aphs t h em s el ves were “mer ely cumulative” of Sparks’s trial testimony

. Additionally , as the district court observe d when it was hear ing arg ument on th e m at t er , t h e photogr aphs wer e medical rec ords that wer e in the custody of the hospi t al and that implicated the victim’s privac y conce rns, possibly requiring a subpoena to obtain. Thus, the di strict court c o uld have rea sonably conclude d that attempting to obtain the photogr aphs woul d ca u s e a delay in the trial that was not justified by the minimal probative value of the photogr aphs. On this rec ord, Watts has fai l ed t o m ak e a showing that not

10having access to the photogr aphs made the case for delay “so convincing that no rea sonable

trial judge could conclude t hat s cheduling and other considerations as well as fa irness to the State outweig hed the defe ndant’s interest in delay of the trial.” Nor has Watts demonstrated on this rec ord how his defe nse was actua lly prejudice d by his inability to obtain and revie w the photogr aphs. We

overr ule Watts’s second issue.

Evid entiary suff

iciency I n his third issue, Watts as s er t s that the evidenc e is insufficient to support the district court’s finding of g uilt. Specifica lly , he claims that the State’s evidenc e, including the testimony of the victim, is not credible in lig ht of other e vidence in the rec ord. When revie wing the sufficie ncy of the evidenc e to support a conviction, we consider al l of the evidenc e in the light most favor able to the finding of g uilt to deter min e wh et h er an y rational trier of fac t could have found the essential elements of the offe nse bey ond a re as o n able doubt. Jack

son v. Virgin a , 4 4 3 U. S

. 307, 319 (1979). We must consider all the evidenc e in the

rec ord, whether direc t or circ umstantial or proper ly or improperly admi t ted. Clayton v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007). We assume that the t rier of fac t resolved conflicts in the testimony , weig hed the e vidence , and drew reasonable infere nces in a manner t hat supports the finding , and we defe r to the trier of fac t’s deter minations of the witnesses’ cre di b i l i t y an d the weig ht to be g iven their testimony

. Jack son , 443 U.S. at 318; Brooks v. State , 323 S.W .3d 893, 899 (Tex. Crim. App. 2010); Clayton , 235 S.W .3d at 778; see Tex. Code Crim. P roc. a rt. 38.04. I n this case , V.W. testified that, in the summer of 2006, she went with Watts and her brother to the ranc h wher e her fathe r worke d. At some point, V.W. rec alled, she was separ ated from her br other a

nd alone with her

fathe r whe n, in V.W.’s words, “He made me pull down my pants.” 11V.W. ref

used, but her fathe r “pulled them down any way ” and then proce eded to sexually assault her. V.W. testified specific ally that W atts put his sexual org an inside her sexual org an and then also “did it from [her] backside ,” which, V.W. clar ified, meant her “bottom.” After he was done, V.W.

rec alled, Watts told her that if she told any one, “w e’d both be in tr ouble.” This scare d V.W., and,

as a result, she did not tell any one about the incident until sometime around late Dec em b er 2007

or ea rly J anuar y 2008. The person to whom V.W. made her initial outcry was her mother, Mary Watts, who

was also Watts’s wife. Mary testified that V.W. came to her one morning and wanted to talk to her about something but insisted that she could not talk about it. Mary told her, “You can tell me. I ’m y our mother.” Eventually , V.W. “said her daddy touched her” and descr ibed to Mary the details of th e incident, including that it happene d “at the ranc h wher e he worke d.” Mary then took her daug hter to a hospital and inf ormed lawenfor ceme nt of what ha d happene d. As discussed above, V.W. was examined by Kathy Sparks, a SANE nur se. S parks testified that, upon visually examining V.W.’s sexual org an, she observe d that the child’s hy men was “re al thin and irreg ular,” which indicated that “she’ s had some ty pe of trauma down there .” Sparks ag ree d with the prosec utor that the trauma could be consistent with pe netra tion by a male’s sexual org an, althou gh s h e acknow ledg ed on cross-e x amination that there could be other explanations, such as a cong enital defe ct or self-injury by the child. Sparks als o t es t i fi ed that, when she was interviewing V.W. about what had ha ppened, V .W. had told her, “My Dad did that.” Shortly there afte r, Watts was interviewe d by law enfor ceme nt. During the interview,

as discussed above, law enfor ceme nt obtained a written statement from Watts that was admitted into evidenc e. The statement conta ined the following :

12Concerning what [V.W .] say s I did to her on one occa sion approximately a y ear -anda- h al f ago , while water ing at the pens at the ranc h outside of Paint Rock, Texas. [V.W .] and I wer e horse- play ing and I acc identally touched her brea st. A few minutes later I was s i tting inside my pickup and [V.W .] was standing at the open door next to me. I rea ched over and touched [V.W .] on her brea st ag ain. After that I touched [V.W .] on her vag ina on the outside of her pants. This touch on her vag ina was sexual a

nd my penis was semi hard. I rubbed her vag ina for a second and then I pulled my semi-har d penis out of my pants and showed it to [V.W .] and asked her if she wanted to touch it, and she said, y es. [V. W

. ] t h en re ac hed and g rabbe d my penis. [V.W .] held onto my penis for a couple of minutes and then she let g o. I put my penis up. Nothing else ever happen ed betwee n [V.W .] and me. I never had sexual int erc ourse with [V.W.]

Watts testified in his defe nse. Watts admitted that he had stated during his interview that he had touched and exposed himself to V.W., but he claimed that he had been ly ing at the time in order to “lessen the char g e” and make law enfor ceme nt g o easie r on him. Watts also claimed that V.W. was ly ing about what had happene d, and Watts denied having intercour s e wi t h h er . When asked why V.W. would lie about this, Watts testified, “I have no idea,” but specula ted that she was ang ry at him be cause he “wouldn’t g ive her money and g o buy

stuff like I

did her brothe r.” Watts al s o claimed that “it’s a possibili ty ” that Mary had told V.W. to lie beca use he and Mary wer e experiencing difficulties in their mar riag e at the time. J .W., V.W.’s brother and W atts’s son, also testified fo r t he defense. J .W. testified that he did not reme mber ever being left alone at the ranc h while Watts and V.W. went off toge ther,

as V.W. had claimed. J .W. further testified that V.W. would g et mad at her fathe r on occa sion, when her f ather would buy

g ifts for J.W

. Viewing the above evidenc e and all rea sonable infere nces there from in the light most favor able to the district court’s finding of g uilt, we conclude that the evidenc e is sufficie nt to support the district court’s finding that Watts had sexually assaulted his daug hter. The victim testified that

13Watts had assaulted her. This testimony , standing alone, would be suffic i en t t o support a finding

of g uilt. See G arcia v. State , 563 S.W .2d 925, 928 (Tex. Crim. App. 1978) (holding that victim’s testimony , standing alone, is sufficie nt evidenc e of penetr ation); Lee v. State , 186 S.W .3d 649, 655 (Tex. App.—Dallas 2006, pet. ref ’d) (“The testimony of the child victim alone is suffi ci en t t o support a conviction for sexual assault.”)

. But in this case , there is more. Specifica lly , the victim’s mother an d t h e s ex ual assault nurse ex aminer both testified t hat V.W

. had identified Watts as t he person who had assaulted her. Additionally , the SANE nurse testified that V.W. had trauma to her hy men that was consistent with penetr ation by a male sexual org an. Also, the defe ndant’s statement

was admi t ted into evidenc e. I n that statement, althoug h Watts denied having “interc ourse” with V.W., he admitted touching her sexual org an and e x posing his sexual org an to her . Fr om this and other evidence , a rational trier of fac t could reasonably infer that W at ts had gone further than j ust “touching ” V.W. and had in fac t penetr ated her sexual org an. I n his brief, Watts provides alterna tive explanations for the above evidenc e and puts forth sever al rea sons why he believes the State’s theory of the case is not cre dible. These defe nsive theories wer e arg ued to the district court at trial, and the district court appar ently reje cted them, as was its prer og ative as the trier of fac t. Ba sed on all of the evidenc e in the rec ord, summarized above, we conclude that a rational trier of fac t could have found bey ond a rea sonable doubt tha t Watts had committed the offe nse of a g g rava ted sexual assault of a child as char g ed. See, e.g. , Martines v. State , 371 S.W .3d 232, 240 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Shaw v. State , 329 S.W .3d 645, 657 (Tex. App.— Ho u s t on [14t h Dist.] 2010, pet. re f’d) ; Couchman v. State , 3 S.W .3d 155, 163 (Tex. App.—For t Worth 1999, pet. ref’d) . We

overr ule Watts’s third issue.

14Cleric al err or in w ritte n jud gm ent of conviction Finally , we observe that the judgme nt of con v i ct i o n contains a cler ical err or. Specifica lly , the judgme nt err oneously states that Watts pleade d “g uilty ” to the offe nse. The rec ord ref lects that Watts pleade d “not g uilty .” This Court has the authority to modify incorre ct judgme nts when the nece ssary information is a vailable to do so. See Tex. R. App. P. 43.2( b); Bigley v. State , 865 S.W .2d 26, 27-28 (Tex. Crim. App. 1993); French v. State , 830 S.W .2d 607, 609 (Tex. Crim. App. 1992). Acc ording ly , we modify the judgme nt of conviction to ref lect that Watts pleade d “not g uilty ” to the cha

rg ed off ense.

CONCLUSION As modified, we a ffirm the judg ment of the district cour t.

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Pury ear , Pemberton and Rose Modified and, a s Modified, Aff irmed Filed: Aug ust 20, 2013 Do Not Publish

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