### In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06

- 0 9

- 00 134

- CR

______________________________

JOHNNY CLAWSON, JR. , Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Sixth Judicial District Court

Lamar County, Texas

Trial Court No. 22971

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Chief Justice Mo rriss2 MEMORANDUM OPINION

Eighteen

- year

- old E.C. made a nervous witness who was extremely reluctant to give

details regarding two sexual assaults allegedly perpetrated against her by Johnny Clawson, Jr.,

when she was less than fourteen years old. Clawson was charged with two counts of aggravated

sexual assault and three counts of indecency with a child. After being fo und guilty and sentenced

to life imprisonment for each of the two sexual assault counts and twenty years ’ imprisonment for

each of the three indecency counts, and assessed a $10,000.00 fine for each count, Clawson

appeals, challenging only the legal and fa ctual sufficiency of the evidence supporting his

convictions on the two counts of aggravated sexual assault. We affirm, because the evidence is

sufficient.

We review the legal and factual sufficiency of the evidence supporting a conviction under

well

- est ablished standards. In conducting a legal sufficiency review, we consider the evidence in

the light most favorable to the verdict to determine whether any rational jury could have found the

essential elements of aggravated sexual assault beyond a reasonab le doubt. Sanders v. State , 119

S.W.3d 818, 820 (Tex. Crim. App. 2003). We must give deference to ― the responsibility of the

trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. ‖ Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007) (citing Jackson v. Virginia , 443 U.S. 307, 318

– 19 (1979)). We are not required to

determine whether we believe that the evidence at trial established guilt beyond a reasonable3

doubt; rather, when faced with conflicting evidence, we must presume that the jury resolved any

such conflict in favor of the prosecution, and we must defer to that resolution. State v. Turro , 867

S.W.2d 43, 47 (Tex. Crim. App. 1993).

In conducting a factual sufficiency review, we consider the evidence in a neutral light.

Watson v. State , 204 S.W.3d 404, 414

– 15 (Tex. Crim. App. 2006). The verdict will be set aside

only if (1) it is so contrary to the overwhelming weight of the evidenc e as to be clearly wrong and

manifestly unjust, or (2) it is against the great weight and preponderance of the evidence. Id. at

415 (citing Johnson v. State , 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). Both legal and factual

sufficiency are measured by the elements of the offense as defined by a hypothetically correct jury

charge. Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Grotti v. State , 273

S.W.3d 273, 280 (Tex. Crim. App. 2008).

Count I of the State ’ s indictment alleged Claws on ― cause[d] the penetration of the female

sexual organ of [E.C.], a child younger than fourteen years of age 1 who was not the spouse of said

defendant by inserting his sexual organ into the female sexual organ of [E.C.]. ‖ Count II alleged

the ― penetratio n of the female sexual organ of E.C. ‖ was caused ― by inserting [Clawson’s] finger

or fingers. ‖ Clawson committed aggravated sexual assault if he intentionally or knowingly

committed these acts with E.C

. when she was younger than fourteen years of age. T E X

. P ENAL

C ODE A NN . § 22.021(1)(B)(i )

, (iii)

, (2)(B) (Vernon Supp. 2009).

1 It is uncontested that E.C. was under fourteen years of age during the alleged acts of sexual assault.4

E.C. ’ s testimony against Clawson included this sequence in which she provided evidence

supporting both alleged aggravated sexual assaults:

Q. Okay. Now, have there been times back in 2000 and 2003 when [Clawson]

would touch you inappropriately?

A. Yes.

. . . .

Q. Okay. Can you tell the jury a time that you remember when something

happened with [Clawson]?

A. A lot of things happened.

. . . .

Q. [E.C

. ], do you know what sexual intercourse is?

A. I ’ ve been told, but that ’ s it.

. . . .

Q. Did [Clawson] ever do anything of a sexual nature to you?

A. Yes.

. . . .

Q. Give me an example of one thing that [Clawson] would do that you ’ d seen

in the movies?

A. All of it.

Q. Okay, [E.C.], you ’ ve got to tell me a specific.

A. I can ’ t.5

Q. You can. Did he ever do anything with his hands?

A. Yes.

Q. What did he do with his hands?

A. Do all sorts of stuff.

. . . .

Q. Can you describe to me other sexual act s that you say [Clawson] did to you?

A. I don ’ t think I c an say it, but I can write it.

. . . .

Q. What part of your body does your underwear cover? Does that part of your

body have a front part and a back part?

A. Yes.

Q. Which par t of the body would [Clawson] touch with his penis and his

hands?

A. The front.

. . . .

Q. The front part of a female has an inside and an outside. Would you agree

with me?

A. Yes.

Q. Did his penis and his fingers touch the inside or the out side of the front part

that your underwear covers?

A. Inside.6

Q. Outside?

A. Inside.

Q. When his penis would go inside the front part that your underwear covers,

would it be at the same time he was doing other things?

A. No

, it would be all just

- - no

- -

Q. Would his fingers and his penis be inside of you at the same time, I guess is

my questions [sic] ?

A. No.

Q. Different times?

A. Yes.

Clawson contends this testimony was insufficient to demonstrate penetration of the female

sexual organ. We disagree. The slightest penetration of the female sexual organ is sufficient to

prove penetration. See Vernon v. State , 841 S.W.2d 407, 409 (Tex. Crim. App. 1992).

P enetration occurs so long as contact with the female sexual organ could reasonably be regarded

by an ordinary person as more intrusive than contact with the outer vaginal lips. Id. ― Female

sexual organ ‖ is a more general term than ― vagina ‖ and refers to the entire female genitalia,

including both vagina and the v ulva. Aylor v. State , 727 S.W.2d 727, 729

– 30 (Tex. App.

— Austin

1987, pet. ref ’ d). Proof of penetration may be circumstantial. Vernon , 841 S.W.2d at 409; Belt

v. State , 227 S.W.3d 339, 342 (Tex. App.

— Texarkana 2007, no pet.)

. Here, a rational jury could

find that ― the front part that your underwear covers ‖ referred to E.C. ’ s female sexual organ and7

that her agreement

— that Clawson ’ s ― penis and fingers ‖ touched the ― inside ‖ and that both were, at

some point, ― inside ‖ of her

— esta blished penetration of E.C. ’ s sexual organ in the context of the

above testimony. See Villalon v. State , 791 S.W.2d 130, 133

– 34 (Tex. Crim. App. 1990).

Further, Christy Lynn McGeehee attended church with E.C. and testified that

, one day, when

McGeehee an d E.C. were alone together on an outing, E.C. ― burst out and she said, [Clawson]

makes me have sex with them. ‖ We find the evidence was legally and factually sufficient to

establish aggravated sexual assault in the manner indicated by the State ’ s indictme nt. 2

Clawson next argues E.C. ’ s testimony on cross

- examination that she hated Clawson makes

her testimony incredible. Despite E.C. ’ s statement, the jury was free to believe E.C. ’s and

McGeehee ’ s testimony. Giving the jury the deference it is due, we con clude the verdict was not

clearly wrong, manifestly unjust, or against the great weight and preponderance of the evidence.

The evidence is legally and factually sufficient.

We affirm the trial court ’ s judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: May 24, 2010

Date Decided: May 25, 2010

2 The jury was also made aware that E.C. watched pornographic movies, and heard her say ―everything on there is what

happened‖ between her and Clawson. While the general characterization of the videos was that they were

―pornographic‖ and the record contains the videos’ titles, that information does not provide any specifics on what

sexual acts were depicted in the videos.8

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