Opinion issued April 12, 2012.

In The

Court of Appeals

For The

First District of Texas

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NOS. 01-11-00223-CR

                   01-11-00224-CR

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Tyler Anthony Mackyeon, Appellant

V.

The State of Texas, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

MEMORANDUM OPINION

A jury convicted appellant, Tyler Anthony Mackyeon, on two charges of aggravated sexual assault of a child under the age of fourteen.[1] After finding a prior felony conviction enhancement to be true, the jury assessed punishment at fifty years’ confinement for each offense, which the court ordered to run consecutively. In two points of error, appellant contends that (1) the evidence at trial was insufficient to support his conviction for the second offense, and (2) the trial court abused its discretion in refusing to grant a continuance to allow appellant to retain an expert witness. We affirm.

BACKGROUND

Appellant was indicted on two counts of aggravated sexual assault of a child for having sexual intercourse with his wife’s step-sister, V.V., on two occasions before V.V. reached fourteen years of age.

The court appointed trial counsel for appellant on December 21, 2009, and appellant filed a motion for continuance on February 2, 2011, the day of his fourth trial setting, seeking time to investigate newly obtained evidence. The trial court granted a continuance after appellant explained in a brief pretrial hearing that the State had recently made him aware of the complainant’s medical records and an updated offense report referencing additional witnesses. On February 10, 2011, appellant moved for, and the trial court granted, approval of funds for an expert witness.

Appellant filed a motion for an additional thirty day continuance at the next trial setting on March 11, 2011, explaining that he had been unable to hire an expert witness. At the March 11, 2011 pretrial hearing on the motion for continuance, the State disclosed that its medical expert would testify to finding no trauma to the complainant’s hymen and that such a finding was consistent both with sexual abuse having occurred and with sexual abuse having not occurred. Appellant’s counsel told the trial court that, although he had been unable to acquire an expert witness, consultations with a neurologist and gynecologist had improved his understanding of the complainant’s medical records and would help him to more effectively cross-examine the State’s medical expert witness. After hearing from counsel, the trial court denied appellant’s motion for a continuance, and the parties commenced with voir dire.

V.V., who was 16 years old at the time of trial, testified that appellant had sexual intercourse with her on three occasions. V.V. testified that the first assault occurred when she was thirteen years old. V.V. gave conflicting testimony regarding her age during the second and third assaults, at times testifying the second and third assaults occurred when she was thirteen years old, and at other times testifying the second and third assaults occurred when she was fourteen years old.

LEGAL SUFFICIENCY

In point of error one, appellant contends the evidence was legally insufficient to support a conviction under Tex. Penal Code Ann. §§ 22.021(a)(1)(B)(i), 22.021(a)(2)(B) (Vernon 2007). Specifically, appellant argues V.V’s conflicting testimony regarding the date of the second offense renders the evidence legally insufficient to support the jury’s verdict.

Standard of Review

An appellate court reviews legal and factual sufficiency challenges using the same standard of review. See Griego v. State, 337 S.W.3d 902, 903 (Tex. Crim. App. 2011). “Under this standard, evidence is insufficient to support a conviction if considering all record evidence in the light most favorable to the verdict, a factfinder could not have rationally found that each essential element of the charged offense was proven beyond a reasonable doubt.” Gonzalez v. State, 337 S.W.3d 473, 478 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)). Evidence is insufficient under this standard in four circumstances: (1) the record contains no evidence probative of an element of the offense; (2) the record contains a mere “modicum” of evidence probative of an element of the offense; (3) the evidence conclusively establishes a reasonable doubt; and (4) the acts alleged do not constitute the criminal offense charged. Gonzalez, 337 S.W.3d at 479; see Jackson, 443 U.S. at 314, 318 n. 11, 320. If an appellate court finds the evidence insufficient under this standard, it must reverse the judgment and enter an order of acquittal. Gonzalez, 337 S.W.3d at 479.

An appellate court “determine[s] whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence viewed in the light most favorable to the verdict.” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)). When the record supports conflicting inferences, an appellate court presumes that the factfinder resolved the conflicts in favor of the verdict and defers to that resolution. Id. (citing Jackson, 443 U.S. at 326, 99 S.Ct. at 2793). “An appellate court likewise defers to the factfinder’s evaluation of the credibility of the evidence and weight to give the evidence.” Gonzalez, 337 S.W.3d at 479. In viewing the record, a court treats direct and circumstantial evidence equally: circumstantial evidence can be as probative as direct evidence, and “circumstantial evidence alone can be sufficient to establish guilt.” Clayton, 235 S.W.3d at 778 (quoting Hooper, 214 S.W.3d at 13).

A person commits aggravated sexual assault when he intentionally or knowingly causes the penetration, by any means, of the sexual organ of a child younger than fourteen years of age. Tex. Penal Code Ann. §§ 22.021(a)(1)(B)(i), 22.021(a)(2)(B) (Vernon 2007). Having reviewed the evidence in the light most favorable to the verdict, we conclude that V.V’s testimony was legally sufficient to establish that she was under the age of fourteen when appellant assaulted her as Section 22.021(a)(1)(B)(i) of the Penal Code defines that offense and as charged in the indictment.

V.V. was born April 8, 1994, thus her fourteenth birthday was April 8, 2008. V.V. testified that the first assault for which appellant was convicted occurred on an unspecified date shortly after her 13th birthday. She later testified the first assault occurred in June 2007. Both accounts reflect the first assault occurring prior to V.V.’s fourteenth birthday.

V.V. gave inconsistent testimony regarding her age at the time of the second and third assaults and the dates on which those assaults occurred. On direct examination V.V. testified that the second assault occurred “a long time after” the first assault, describing the time period of the second assault as when the school year “was about to be over.” On cross-examination V.V. testified the second assault occurred in August of 2007, at which time V.V. would have been thirteen years old. And on re-direct examination V.V. testified the second assault occurred “about when school was out” in 2008, at which time V.V. would have been fourteen years old.   

Regarding the third assault, V.V. testified on cross-examination that appellant assaulted her in December 2008, at which time V.V. would have been 14 years old. However, V.V. also testified on cross-examination that she was 13 years old at the time of the third assault.

Finally, V.V. gave inconsistent summations of her testimony regarding her age at the time of the second and third assaults. On re-direct examination V.V. testified that appellant assaulted her twice when she was thirteen and once when she was fourteen, and on recross-examination V.V. testified appellant assaulted her once when she was thirteen and twice when she was fourteen.

Appellant argues that V.V.’s testimony that she was fourteen at the time of the second assault is stronger than her testimony that she was thirteen at the time of the second assault. But, the jury is the sole judge of the credibility of witnesses and the weight to be given their testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). And when the record supports conflicting inferences, an appellate court presumes the factfinder resolved the conflicts in favor of the verdict and defers to that resolution. Clayton, 235 S.W.3d at 778. Although V.V. gave inconsistent testimony regarding her age at the time of the second and third assaults, the jury could have rationally credited her testimony that she was thirteen when the second or third assault occurred. Therefore, weighing the evidence in favor of the verdict, we conclude that the evidence was legally sufficient to prove V.V. was less than fourteen years of age at the time of either the second or third assault.

We overrule appellant’s first point of error.

MOTION FOR CONTINUANCE

In his second point of error, appellant contends the trial court erred in denying a continuance sought in order to obtain an expert witness.

Standard of Review

We review a trial court’s ruling to grant or deny a motion for a continuance for an abuse of discretion. Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002). Establishing reversible error predicated on the denial of a motion for continuance requires showing not only that the trial court abused its discretion in denying the motion, but also that the lack of continuance harmed the defendant. Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010).

In Renteria v. State, a murder case, the Court of Criminal Appeals held a trial court did not abuse its discretion in denying a motion for continuance sought so that defense counsel could investigate (1) new evidence suggesting the murder could have been committed by an unknown person other than the defendant, and (2) new evidence suggesting the possibility of problems with DNA testing in the case. 206 S.W.3d 689, 702 (Tex. Crim. App. 2006).

Despite arguments by the trial attorney that these investigations could change his theory of defense and approach to voir dire, the court ruled that “[c]ase-law requires more than this type of speculation to justify an appellate reversal of a case for a trial court’s failure to grant a continuance.” Id.

The record in the instant case does not support even the insufficient degree of speculative prejudice rejected in Renteria. Id. Appellant argues that if he had been granted a continuance, he would have obtained an expert witness who would have provided assistance evaluating V.V.’s medical records and in rebutting the State’s expert testimony about V.V.’s medical examination. However, the record does not demonstrate that the medical records or the related testimony were an essential portion of the State’s case, nor that absence of a defense expert prejudiced the appellant. The State’s medical expert who examined V.V. after she reported the assaults testified that the examination results were normal and “could not rule out or rule in” V.V. having been assaulted.

Moreover, appellant’s trial counsel acknowledged in the pre-trial hearing on his motion for continuance that consultations with a neurologist and a gynecologist had assisted him in evaluating the medical records and preparing for cross-examination of the State’s expert witness. The State’s medical expert’s remark during testimony that appellant’s trial counsel had “done [his] homework” further reflects that defense counsel was not unprepared for the cross-examination.

Accordingly, appellant has not shown how the trial court’s denial of a continuance prejudiced the appellant. Therefore, weighing the evidence in favor of the verdict, we conclude the trial court did not abuse its discretion in denying appellant’s motion for continuance.

We overrule appellant’s second point of error.

CONCLUSION

We affirm the trial court’s judgment.

                                                                   Sherry Radack

                                                                   Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Do not publish.   Tex. R. App. P. 47.2(b).