NO. 07-00-0491-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A JANUARY

18, 2002

______________________________ DERW IN RENARD MALONE, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 338 TH DISTRIC T COURT O F HARRIS COU NTY; NO. 829559; HON ORABLE ELSA ALCA LA, JUDGE

_______________________________ Before BOYD, C.J., and REAVIS an d JOHNSON, JJ.
In two points

of error, app ellant Derw in Renard Ma lone challeng es the legal and factual sufficiency of the evidence to support his conviction of sexual assault of a child and the resulting punishment of 15 years confinement in the Institutio na l Divisi on of the Department

of Criminal Justice. F inding no r eversibl e error, w

e affirm the judgment of the trial cour t.2

Because of the nature of appellant’s challenge, we must brief ly review the relevant evidence. D oris Walker, appellant’s ex-w ife and the mother of the complainant, testified thatshe and appellant ha d a som ewhat troubl ed relationshi p. They met in July 1995, began living together i n the summer of 1996, and mar ried in October 1997. Dur ing the period of their relat ionship, the complainant lived i n the house with the couple. Doris said she encouraged appel lant to act as a father figur e for her minor da ughter, inc luding disciplini ng her, although the girl did not like for app ellant to do so. Duri ng the period from 1996 until their divorce in 2000, the coup le separated three or fou r times.
When the child was 12, she accus ed appellant of touching her genitals but, Doris said, she did not know whether to be lieve her because she thought the girl might simply be seeking mor

e attention from her. After theparties’ June 1999 separation , Doris had film de velo ped from a camera w hich had been used b y appellant. Among the res ulting photographs, she di scov ered s ome nude photographs which, s he later discovered, to be of the complainant. She turned the picturesover to th e police and noti fied appellant, w ho denied any wrongdoin g. When cross-examined, Doris admitted that the child ha d made false state ments in the past, includi ng a report about Doris to the Childr en’s Protecti ve Se rvices. She also admitted that the chil d would somet imes become ver y angry at appellant for d isciplini ng her. She also said that appell ant had told her she “better w

atch” the compla inant or she would become pregnant. At the time o f the t rial, the c omp lain ant wa s pre gnan t by a neighbor.3

The complainant test ified and admitted her pregnancy

and that she had s ex with five other boys begi nning at ag e 14. She also av erred that her

natural father

had molested her in 1996. She averred tha t appellan t began “touching” her under her clothes. Doris, learning of the se ins tances from one of the chi ld’s friends, confronted appellant about them, but when appellant denied the occasions, Doris told the child she did not believ e the accusations. When the complainant w as in the seventh or eight h grade, appel lant began having sexual i ntercourse w ith her. She als o averred that the photogr aphs were of her

and were taken by appel lant wit h the assurance that they w ould be destroy

ed . She als o admitted havi ng been untruthful with her mother in the past

. Ap pellant

testified that he had discipli ne problems w ith the complai nant and h a d struckher on occasions, but denied he had ever taken the pi ctures of the compl ainant or had any sexual activity w ith her. He averred that his cousin had borrowed the camera in March or May 1999, the cousin had reluctantly admitted he had take n pictures of a nude woman with the camera, and he beli ev ed the film in the camera in Se ptember was that whic h had be en in t he camer a whe n it was used by hi m. Aman’s hand was seen i n the photographs and, when q uestioned about it by the State, appellant denied that it wa s his hand, beca use it did not show a tattoo located on his arm. He admitted that a mark in the p hotograph was simil ar to aburn ma rk on h is ar m. Althou gh he contended that thecomplainant was not afraid of him, head mi tted he had struckher and spli t her lip s ufficiently to require s titches. The defense a lso called appellant’s sister-i n-law, w ho testified that s he had h ea rd Doris make some statements t hat4

led her to belie ve tha t the accu sati ons D oris m ade we re motivated by ill will against appellant.
As we not ed in itia lly, appellant chal lenges both th e legal and the factual suf ficiency of the evidence to support his convi ction. In con side ring a legal suffici ency c hall enge , we are required to view

the evidence in a lig ht most favorabl e to the prosecut ion and then determine if an y ratio nal t rier o f fa ct co uld h ave found the essential elements of the off ense beyond a reasonable doubt

. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ; Clewis v. St ate , 922 S.W.2d 128 (Tex.Crim.App. 1996). Su ffic e itto say, if the evidence is legally insufficient, we must render an acquittal. If the evidence is legal ly sufficient, we must then determine if it i s factually sufficient. See id

. at 134. In determ in ing the factual sufficienc y questi on, we must v iew all the evidence without t he prism of “in the li ght most favor able to the prosecution” and only set aside the verdict if it is so cont rary to the overw helming weight of the ev idence as to be c learly wrong a nd unjust. Id. at 129.
The gist of appell ant’s argument under each point

is that the complainan t ’s testimony

was not credible. However, in a jury trial such as this, thejury i s the judge of the facts proved, the credibili ty of the w itnesses, theweight to be given to their testimony, and in perfor mi ng that funct ion, it may accept or r

eject all or

any part of the testimony. See Cain v. State , 958 S.W.2d 404, 407 (Tex.Cri m.App. 1997 ). Because the jur y has the opportunity

to observe the demeanor of the witness es, we must give a high deg ree of5

deference to the jury ’s determinati ons and may onl y find the evidence factua lly ins ufficient to prevent mani fest injustice

. Id.
In his argument , appellant ack nowledges the above gener

al rules, but

contends “at some point the cred ibility of the complainant i s so undermined that a rev iewing court can nothave confidence in a verdi ct supported s olel y by the witnes ses’ testimony .” In pursuance of his proposit ion, appellant e mphas izes the evidence that Doris w as mad at appellant, the complainant had lied about discipline problems at scho ol, and she had not told her m othe r abo ut th e sexu al ac tivity. However, in addition to the comp lain ant’ s tes timo ny, the jury had the opportunit

y to examine the photogra phs, whic h the complainant u nequivocally tes tified weretaken by appellant, aswell as her id enti fica tion of a brac elet shown in the pictures and often worn by appellant. The j ury also had the opportunity to examine thepicture of the hand of the man invo lved in thesexu al act ivi ty pi cture s that contai ned a mark simi lar to tha t on appellant’s hand . The evidenceis legal ly sufficient to sustain the conviction.
In presenting his factual suffici ency chall enge, appellant po sits that the court’s holding in Clewismandates reversa l if the verdi ct is agai nst “the gr eater wei ght and preponderance of the evidence.” W e disagree with that premise. The standa rd actually articulated in Clewisis that we are to “v iew . . . all t he evidence w ithout the pri sm of ‘in the light most favorable to the prosecution ’ . . .[and] set aside the verdict only if it is so contrary6

to the overw helming weight of the ev idence as to be c learly wrong a nd unjust.” 92 2 S.W.2d at 129.
After his discus sion of the Clewisrequirements, appellant ar gue s thatthe complainant

was not credible and, in support, points to the absence of scientific evidence or the direct testimon y of o ther witne sses conc erni ng the incid ents of se xual a ctivit y. However, we are mi ndful that in rev iewing the sufficiency of the e vidence, we must consider the evidence before us and may not specul ate as to evi dence not before us and which may not ex ist. Ch a mbers v. State , 711 S.W .2d 240, 245 (Tex.Crim.App . 1986). Appellant’s only evidence directly controverting the complainant’s test imon y is his own testimony

denying any

sexual ac

tivity as well as

the taking of the pictures. That testimony onlycreated a conflict for resolu tion by the jury as the factfinder. W e cannot say that their resolution of the relevan t facts agains t appellant was so contrar y to the overwhelming weight of the evidence as to be clearly wrong and unjust. Appellant’s points of error are overrule d and the judgment of the trial cour t is affirmed.

John T. Bo yd Chief Justice Do not publish

.