1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sit ting by a ssignmen t. NO. 07-04-0542-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL E MAY 24, 2006

______________________________ PRESTON WOOD, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 47TH DISTRICT COURT OF ARMST RONG COUNTY;

NO. 1031; HONORAB LE HAL M INER, JU DGE

_______________________________ Before REAVIS and HANCOCK, JJ. and BOYD , S.J. 1
MEMORAND UM OPINION Following a plea of not

guilty, appellant Preston Wood was convicted of indecency with a child by sexual contact and se ntenced to twenty years confinement and a $10,000 fine. Presenting five issues, appellant contends (1) the evidence wa s legally and (2)2

factuallyinsufficientto support his conviction, (3) the jury was erroneously charged on the basis of a disjunctive culpable mental state, (4) the court impermissibly commented on the weightof the evidence during punishment, and (5) a fatal variance existed in the indictment with resp ect to thename of t he victi m. We affi rm. Appellant

was char

ged with engagin g in sex ual contact with a 16-year-old female. Appellant

had been romantic ally involved wi th the vi ctim’s mo ther. On September 2, 1998, appellant

visited th e victim’s mother at her homewhile s he was re covering from a hysterectomy. Althoug h the rel ationshi p was nolonger r omantic, appella nt decid ed to spend the night. The victim’s mother slept on the couch while the victim lay next to her on the living room floo r. At some point during the night, the victim awoke to appellant rubbing her ge nitals with his finger over her clothes. The victim rol led over on her stomach and eventuallygot up a nd went to the bat hroom. A short time late r, she returned to the living room and went to s leep in a reclin er.
The next morning, appellant woke the victim and asked her if he h ad “done something” to her du ring the night. S he re sponded that he had not. Appellant also informed the victim’s mother that he “may have done something” to her daughter. Shortly thereafte r, appellant left the residence, and the victim told her mother what had happened. The victim’s mother

confronted appellant later that evening. Appellant admitted to touching the vic tim but cla imed he mistook the victim for her. The victim’s mother reported the incidentto the Armstrong County Sheriff’s Office. The victim wasthen taken to a children’s3

advo cacy center

in Amarillo where she was interviewed . The following month, appellant visited Armstrong County Sheriff C armela Jo nes Smith at her home and confessed he was sorry for to uching t he victim. He also explained he thoug ht he was touching the victim’s mother. Appellant was subsequently arrested for indecency w ith a child. By his firs t and second issu es, appel lant contendsth e evidence was legally and factual ly insufficient to support his conviction because there was no evidence prese nte d at tria l that heacted (1) with in tent to ar

ouse and gratify h is sexu al desir e, and (2 ) intentionally and knowingly. We disagree.
When bot h the legal and factual sufficiency of the evidence are chall enged, we must first determine whether the evidence is legally sufficient to suppo rt t he verdict. Clewis v. State, 922 S.W.2d 126, 133 ( Tex.Cr.App. 1996). It is a fundamental rule of criminal law that one cannot

be convicted of a crime unless it isproved beyond a reasonable doubt that the defendant committed each element of the alleged offense. U

. S. Const

. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2005); Tex. Pen. Code A nn. § 2.01 (Vernon 2003). When conducting a legal sufficie ncy review, we mus t determin e whethe r, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have fou nd the es sential elementsof the cri me beyond a reason able dou bt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed. 2d 560, 5 73 ( 1979 ). We conduct this analysis by considering all the evidence before the jury-whether proper or improper-so thatwe can make an assessment from the jury's perspective. Miles v. State,4

918 S.W.2d 511, 512 (Tex.Cr.App. 1996). We must uphol d the j ury's verdict unless it is irrational or

unsupported by more than a mere modicum of evidence. Moreno v. State, 755 S.W.2d 86 6, 867 (T ex.Cr.Ap p. 1988).
We next proceed with a factual suffici ency review. Clewis , 922 S.W.2d at 133. Under this standard, we view all the evidence without the prism of "in the l ight most f avorable to the pr

osecutio n" and se t aside t he verdi ct only i f it is so contrary to th e overwhelming weight of the evid ence as to be cle arly wron g and un just. Johnson v. State, 23 S.W.3d 1, 9 (Tex.C r.App. 20 00). We must determine after considering all the evidence in a neutral light, whether the jury was rational ly justified in finding guilt beyond a
re asonable doubt. Z uniga v. State, 14 4 S.W.3d 4 77, 484 ( Tex.Cr.A pp. 2004 ). In ou r review, we do not resolve any conflict of fact, weigh any evid ence, or e valuate the credi bility of the witnes ses, as this w as the fun ction of the trier of fact. See Adelman v. State, 828 S.W.2d 41 8, 421 (T ex.Cr.Ap p. 1992).
Before we determine whether the evi dence was sufficient to support appellant's convicti on, we mu st first re view theelements the State was required to prove. Appellant
was charged with knowingly a nd inten tionall y engagi ng in se xual co ntact wit h the vic tim,
a child u nder 17 y ears of age and not his spouse, by touching her genitals w ith his finger with intent to arouse or gratify his sexual desire. See Tex. Pen. Code Ann. § 21.11 (Vernon 2003). The victim testified she awoke to appellant rubbing her vagina over her clot hes with his finger. The testi mony of a child vi ctim alon e is suff icient to supp ort a conviction for5

sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07(a)-(b) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.App .–Dallas 20 02, pet. r ef'd). Th e requis ite inten t to
arouse or gratify a person ' s sexual desire can be in ferred fro m the pers on's con duct, remarks, or surrou nding ci rcumstanc es. Mc Kenzie v

. State, 617 S.W.2d 211, 216 (Tex.Cr.App. 1981). T here was also evidence appellant asked the victim about the incident the next morning and admitted to both her mother and Sheriff Smith that he may have touched her inappropriately. Although appellant claimed it was a case of mistaken identity, the jury, as the exclusive jud ge of thefacts and credibi lity of th e witnes ses, is fr ee to believe or di sbelieve a ny part of a witnes s’s testi mony. Tex . Code Cr im. Proc. Ann. art. 38.04 (Ve rnon 197 9); Goodma n v. State , 66 S.W.3 d 283, 28 7 (Tex.C r.App. 20 01). Viewing the evidence in the li ght most favorable to the prosecution, we concl ud e a rational trier of fact could have found beyond a reasonable doubt that appellant knowingly and intentionally touched the victim with intent to arouse and gratify his sexual desire. We further conclude the evidence is not soweak or so against the overwhelming wei ght of the evidence as to render the jury's verdict to be clearly wrong and unjust. Appellant's first and second issues are overruled. By his third issue, appellant contends the trial court erred by charging the jury on the basis of a disjunctive culpable mental state. Specifi cally, h e challe nges the fact that the indictmentalleges he engaged in sex ual cont act with the victim “intentionally and knowingly” while the jury charge allows a conviction upon finding he acted ei ther6

“intentionally or

knowingly.” Appellant contends this was error because Ngo v. State, 175 S.W.3d 738 (Tex .Cr.App. 2 005), req uire s t hat a jury verdict m ust be un animous. We disagree.
When rev iewing the record for jury charge error, we must first determine whe the r error actually exists, and second, whether sufficie nt harm resulted from the e rror to req uire reversal. Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon Supp. 2005); Hutch v. State, 922 S.W.2d 166, 170 (Tex.Cr.App. 1996). As appellant acknowledges, the practice of indicting
a defendant’s mental state conjunctively but submitting it to the jury disjunctively has been upheld by Texa s courts. E.g. , Rogers v. State, 774 S.W.2 d 247, 25 1 (Tex.C r.App. 19 89), overruled

on other

grounds by Peek v. S tate, 106 S.W.3d 72 , 79 (Tex .Cr.App. 2 003); Krebsbac h v. State , 962 S.W. 2d 728, 7 31 (Tex. App.–Ama rillo 19 98, pet. r ef’d).
In addition, we find appellant’s reliance on Ngo to be misplaced. In Ngo , the indictmentalleged three sep arate cri minal ac ts, but the

jury charge permitted a conviction even if the jurors could not unanimously agree as to which one of the acts the defendant committed. Ngo , 175 S.W.3d at 741. Affirming the lower co urt, the Court of Criminal Appeals held that

the fail ure to require a unanimous jury verdict was error which resulted in egregio us harm to

the defe ndant. Id. at 741- 52. Provided the Court did not address conjunctive or disjunctive mental states, we find nothing in this opinion, or subsequent case lawfor that matter, overruling the Court’s holding in Rogers . Accordingly, we find no error with respect to the jury charge in the present case. Appel lant’s third issue is overruled.7

By his fourth issue, appellant contends the trial court impermissibly commented on the weight of the evi dence wh ile read ing the j ury charg e during the puni shme nt pha se. After instructing the jury regarding consideration of parole and good conduct time, the trial court stated as follows:
Let me tell you this. Every time I read this I wantto tell t he jury, I didn’t w rite that. The le gislature wrote that wording exactly from the Code of C riminal Procedur

e, and I a m require d to read it.
In orde r for us to consider appellant’s complaint on a ppeal, the record must show he preserve d his com plaint b y a timel y request , objectio n, or moti on and obtained an adverse ruling from the trial court. Tex. R. App. P. 33.1(a); Hull v. S tate, 67 S.W.3d 215, 217 (Tex .Cr.App. 2 002). Here, appellant did not object to the court’s remarks or request
a mistrial

. Nevertheless, appellant suggests the comments should beanalyzed under the Almanza standard for unpre served ju ry chargeerror. See Almanza v. State, 686 S.W.2d 15 7, 171 (Tex.Cr.App. 1984). However, even assuming i t constituted an improper comment on the weight of the evidence, we are not convince d thatthe trial court's remarks caused egregious harm to appellant such asthat con templated in Almanza

. See id. Appellant’s fourth issue is overruled. Appellant’s fifth issue alleges a fatal variance existed between the last name of the vi ctim alleged in the i ndictmen t and thelast nam e provid ed by thevictim a t tri al. Th e indictmentalleges

the victi m’s last name was “Rowell.” However at trial, the victim spelled h er last name as “Rawell.” Appellant contends this variance makes the evidence legally8

and factually i nsuffici ent to sup port his convicti on as al leged in the indi ctment. We disagree.
Under th e rule of idem sonans , a variance b etween the n ame alleged in the indictmentand that proved at trial is immaterial if the names sou nd the same o r if it is difficultto distinguish between the two names when they are pronounced out loud. Martin
v. State, 541 S.W. 2d 605, 6 08 (Tex. Crim.App . 1976). Provided the variance in the present
case consists

of a sin gle lette r w hich soun ds similar when pronounced, we find this principle applicable here. Furthermore, appellant doesnot contend that the spelling of the victim's name in the indictment surprised him or failed to provide him notice of the charge against which he was required to defend. Appellant’s fifth issue is overruled.
Accordin gly, the trial cou rt’s judgm ent is af firmed.

Don H. Reavis Justice Do not pu blish.