Affirmed; Memorandum Opinion filed December 20, 2012 Withdrawn, and 

Substitute Memorandum Opinion filed January 31, 2013.

In The

Fourteenth Court of Appeals 

NO. 14-11-00573-CR

REUBEN COLBERT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 1264286

S U B S T I T U T E M E M O R A N D U M O P I N I O N 1

 

1

 We withdraw our memorandum opinion issued December 20, 2012, and issue this 

opinion in its place.
2

Appellant Reuben Colbert appeals his conviction for aggravated sexual 

assault of a child, challenging the sufficiency of the evidence to support his 

conviction and asserting harm and violation of his due-process rights through the 

admission of allegedly improper impeachment testimony offered by the State 

against its own witness. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was charged by indictment with the offense of aggravated sexual 

assault of a child, Sara,2a twelve-year-old girl. Sara told her mother that appellant, 

an adult, had sexual intercourse with her at a relative’s home as friends and family 

members were helping the relative move to a new home. Sara’s mother notified 

authorities. Investigating officers referred Sara to the Children’s Assessment 

Center, where Sara underwent a sexual-assault examination and talked with 

counselors about the incident. Appellant pleaded “not guilty” to the charged 

offense. 

At trial, Sara testified that during the summer of 2009, she, appellant, and 

others were helping a relative move into a new home. According to Sara, during 

the move, appellant spoke with her and inquired about her virginity. Sara claimed 

to have been attracted to him, and eventually the two laid next to each other in a 

bedroom while the move took place. According to Sara, other minors, including 

her sister, were asleep in the same room at the time. Sara testified that she and 

appellant began to kiss after first “cuddling” together and chatting on the bedroom 

floor. Sara testified that she straddled appellant and began to “grind” on him; the 

two then disrobed and continued kissing as appellant retrieved a condom. Sara 

testified that appellant had sexual intercourse with her while she straddled him for 

 

2 To protect the privacy of the complainant in this case, we identify her by a pseudonym, “Sara.”
3

nearly five minutes. She testified that appellant placed his penis inside of her 

“private area,” which she described as her female sexual organ, and she moved her 

body up and down.

Sara testified that the conduct occurred while the others in the room were 

sleeping, and the conduct ceased when Sara’s sister awoke; Sara pretended to be 

asleep when her sister called for her. Sara claimed that she and appellant got 

dressed after Sara’s sister left the room. When family members asked Sara about 

the incident in the weeks to follow, Sara at first denied having engaged in sexual 

intercourse with appellant. Sara later told her mother and an aunt that, during the 

move, she and appellant had sexual intercourse.

At trial, Matt,3appellant’s nephew and also Sara’s fifteen-year-old cousin, 

testified that he also helped the relative move. According to Matt, through a crack 

in a bedroom door, he was able to observe Sara and appellant together on the floor 

in a bedroom. Although Matt testified that he observed Sara, wearing a sports bra, 

on top of the appellant, Matt denied having seen the two engage in sexual conduct. 

When asked about prior statements that he had made to investigators and other 

adults following the incident, Matt denied having expressed any belief that 

appellant and Sara had engaged in sexual intercourse. Matt reported to 

investigators that Sara had a condom in her hand on the morning after the move, 

but Matt testified at trial that the condom was unopened and appellant was no 

longer at the home at that time. Matt admitted to being related to both Sara and 

appellant, and denied that family members pressured him to avoid testifying in the 

case.

 

3 To protect the privacy of the juvenile witness in this case, we identify him by a pseudonym, 

“Matt.”
4

The State called Mark,4 Matt’s father, to testify for the purpose of 

impeaching Matt’s testimony. According to Mark, Matt stated that he had 

observed Sara and appellant engaging in sexual intercourse during the move. Mark 

testified that he accompanied Matt to an interview with prosecutors related to the 

underlying case. Mark confirmed that during the interview Matt told prosecutors 

that Sara was not wearing a shirt and that he observed Sara on top of appellant. 

Mark confirmed that in the interview Matt explained to the prosecutors that Sara 

and appellant were under covers and that he observed the covers moving up and 

down. Mark confirmed that Matt told prosecutors he believed the two were 

engaging in sexual intercourse because the covers slid off of Sara and he saw her 

moving up and down on top of appellant. Mark confirmed that Matt told 

prosecutors that he found condom packages the next morning and believed that 

Sara and appellant had engaged in sexual intercourse. Mark confirmed that Matt 

told prosecutors that he had been getting a lot of pressure from his mother, 

appellant’s sister, to change his “story.” 

The investigating officer also testified and had taken statements from Sara 

and Sara’s mother. A video recording of Sara’s interview with the investigating 

officer was admitted into evidence. As reflected in the video, Sara told the 

investigating officer that she had engaged in sexual intercourse with appellant, 

describing the sexual conduct with specific detail. The investigating officer also 

spoke with Matt, who claimed to have observed appellant and Sara engaging in 

sexual intercourse. According to the investigating officer, Matt’s observations and 

account were consistent with Sara’s account of the incident.

 

4 Mark is a pseudonym for Matt’s father.
5

The doctor who conducted the sexual-assault examination of Sara also 

testified and recalled Sara’s admission that she had engaged in sexual intercourse 

with appellant. Sara explained to the doctor that appellant placed his “private” in 

her “private area” and that appellant wore a condom. The doctor testified that she 

examined Sara about four weeks after the incident occurred and that because of the 

time that had passed, the results from the physical exam were not a basis to either 

rule out or confirm the possibility of sexual abuse or penetration. 

Appellant called Sara’s thirteen-year-old sister to testify. The sister claimed 

to have been in the same room as Sara on the night of the move. The sister denied 

seeing Sara and appellant alone and claimed that Sara had a reputation for not 

telling the truth. Matt’s mother also testified and claimed that Matt did not tell the 

investigating officer that appellant had sex with Sara.

The jury found appellant guilty of the charged offense. During the 

punishment phase, appellant testified and denied engaging in sexual conduct with 

Sara. Appellant was sentenced to nine years’ confinement and now appeals his 

conviction. 

SUFFICIENCY OF THE EVIDENCE

In appellant’s first point of error, he contends the evidence is insufficient to 

support his conviction. 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). The verdict may not be overturned unless it is 

irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 
6

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. Crim. 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. Crim. App. 1997). 

The indictment alleged that, on or about July 25, 2009, appellant 

intentionally and knowingly caused the penetration of the female sexual organ of 

Sara, a person younger than fourteen years of age, by placing his sexual organ in 

the female sexual organ of the complainant. A person commits the offense of 

aggravated sexual assault of a child if the person intentionally or knowingly (1) 

causes the penetration of the anus or sexual organ of a child, under the age of 

fourteen, by any means, or (2) causes the sexual organ of a child, under the age of 

fourteen, to contact or penetrate the mouth, anus, or sexual organ of another 

person, including the actor. See Tex. Penal Code Ann. §§ 22.021(a)(1)(B)(i), 

(B)(iii), (a)(2)(B) (West 2011).

Appellant asserts that there was no credible evidence of penetration, a 

necessary element of the charged offense. The record reflects Sara’s testimony 

that appellant placed his penis “inside” of her “private area,” which she confirmed 

was her female sexual organ. She testified that she was twelve years old at the 

time of the incident. Sara explained that she straddled appellant and moved her 

body up and down as his penis was inside her. The recorded video interview, 
7

which was admitted into evidence, reflects Sara’s description to the investigating 

officer as to how appellant placed his penis, which she referred to as “his private 

area,” in her vagina. Sara informed her mother as well as the sexual-assault 

examiner and the investigating officer that appellant had engaged in sexual 

intercourse with her. The testimony of a child complainant, standing alone, is 

sufficient to support a conviction for sexual assault. See Tex. Code Crim. Proc. 

Ann. art. 38.07 (West 2011); Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. 

App. 1990) (concluding a child complainant’s unsophisticated terminology alone 

established element of penetration beyond a reasonable doubt); Bargas v. State, 

252 S.W.3d 876, 888 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Jensen v. 

State, 66 S.W.3d 528, 534 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).

The record also contains the sexual-assault examiner’s testimony that Sara 

admitted that approximately four weeks before the doctor’s physical examination, 

she and appellant had engaged in sexual intercourse. Although appellant asserts 

that the results of the doctor’s physical examination could not confirm that 

appellant had engaged in sexual intercourse with Sara, the doctor explained that it 

is common to receive “normal” test results when a physical examination occurs 

later than seven to ten days after a sexual assault. There is no requirement that a 

child complainant’s testimony be corroborated by medical or physical evidence. 

See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978); 

Bargas, 252 S.W.3d at 888–89. 

Appellant asserts that Sara offered conflicting testimony, pointing to 

testimony that Sara, at first, denied having sex with appellant and then later 

changed her account when confronted by her mother. Appellant also points to 

testimony in the record that he has noticeable scarring on his torso from being 

burned in a fire as a young person and that Sara made no reference to the scars in 
8

her testimony, suggesting that her testimony cannot support his conviction. 

Appellant also points to Matt’s trial testimony in which Matt denied having 

witnessed appellant and Sara engage in sexual intercourse. Despite Matt’s 

testimony, the record contains other testimony from an investigating officer and 

Mark that Matt had expressed a previous belief that, during the move, he had seen 

appellant engaging in sexual conduct with Sara. The record also reflects that Matt 

encountered familial tensions as a result of the sexual-assault allegations. The 

jury, as trier of fact, held the ultimate authority to weigh the credibility of the 

witnesses and the testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 

2013); Bargas, 252 S.W.3d at 889. The jury judged the credibility of the witnesses 

and reconciled conflicts in the evidence, and could have accepted or rejected any or 

all of the evidence on either side. See Bargas, 252 S.W.3d at 889. Viewing the 

evidence in the light most favorable to the verdict, we conclude the jury, as a 

rational trier of fact, could have determined that the essential elements of the 

offense were satisfied beyond a reasonable doubt. See id. Therefore, the evidence 

is sufficient to support appellant’s conviction for aggravated sexual assault. See id. 

Accordingly, we overrule appellant’s first issue. 

ADMISSION OF IMPEACHMENT TESTIMONY

In his second issue, appellant asserts that he was harmed and denied due 

process when the State was permitted to introduce allegedly improper 

impeachment testimony through Mark. Mark’s impeachment testimony consisted 

of Matt’s prior inconsistent statements to his father and prosecutors that Matt had 

observed appellant and Sara engaged in sexual conduct. On appeal, appellant 

complains of Mark’s testimony of familial friction that suggested Matt had been 

unduly pressured by his mother to change his account of the event in question. 
9

Appellant asserts that Mark’s testimony was improper impeachment evidence that 

prejudiced appellant’s right to a fair trial and deprived him of due process of law.

The record contains Mark’s testimony of “tension” between Matt and Matt’s 

mother because of the underlying sexual-assault charges against appellant. Mark 

described how Matt felt a “push” of sorts “to morally side with” appellant so that 

appellant, Matt’s uncle, “wouldn’t get in trouble.” The record also contains 

Mark’s testimony that Matt believed appellant and Sara were engaging in sexual 

intercourse because the covers slid off of them, testimony which appellant 

characterizes on appeal as hearsay evidence. No objections were raised during 

either of these instances of Mark’s testimony. The record reflects Mark’s 

subsequent confirmation that Matt spoke about being pressured by his mother to 

change his account. At that point, appellant asserted a hearsay objection, which 

was sustained by the trial court. 

Even presuming, without deciding, that that appellant’s hearsay objection to 

some of Mark’s testimony regarding whether Matt was pressured to change his 

account preserved appellant’s challenge on appeal to improper impeachment 

testimony, any error was harmless in light of the admission of similar evidence at 

trial without objection. See Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. 

Crim. App. 2010) (stating that improper admission of evidence was harmless “in 

light of the proper admission into evidence of very similar” evidence); Rene v. 

State, 376 S.W.3d 302, 307 (Tex. App.—Houston [14th Dist.] 2012, no pet.) 

(concluding that had evidence been improperly admitted at trial, error would be

harmless in light of admission of other similar evidence without objection). Such 

evidence already had been admitted, without any objection, when Mark spoke of 

the family tension and the “push” for Matt to “morally side” with appellant so that 
10

appellant could avoid getting into trouble. Accordingly, we overrule appellant’s 

second issue.

The trial court’s judgment is affirmed. 

/s/ Kem Thompson Frost

Justice

Panel consists of Justices Frost, Christopher, and Jamison.

Do Not Publish — TEX. R. APP. P. 47.2(b).