Oscar Gutierrez v. State

Affirmed and Memorandum Opinion filed July 1, 2008

Affirmed and Memorandum Opinion filed July 1, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-06-00798-CR

NO. 14-06-00799-CR

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OSCAR GUTIERREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause Nos. 1038933 &1038934

M E M O R A N D U M   O P I N I O N

Appellant Oscar Gutierrez was tried and found guilty by a jury of the felony offenses of aggravated sexual assault of a child and indecency with a child.  The jury assessed punishment at five years= confinement in the Texas Department of Criminal Justice, Institutional Division, and a $10,000 fine for the aggravated sexual assault conviction, and ten years= probation and a $10,000 fine for the indecency with a child conviction.  In four issues, appellant challenges the legal and factual sufficiency of the evidence supporting the jury=s verdicts.  We affirm.

Factual Background

In May 2005, D.C., the complainant, who was eight years old and in the third grade, was at school talking to her friend R.F. in the back of the classroom, when R.F. began telling D.C. about some bad things that had happened to her.  D.C. started crying and told R.F. about similar things that had happened to her, but R.F. thought that what D.C. described was  Aa lot worse@ than what had happened to her.  R.F. went home and told her mother about what D.C. had said. R.F.=s mother reported the conversation to the school nurse, Debra Harris, who then spoke with R.F. and D.C.^[1] Harris learned from D.C. that the adult she made the allegations against was her grandfather, but Harris did not determine whether it was the maternal or paternal grandfather.  She did not feel that it was her place to investigate further, because she already had enough information to make a report to Children=s Protective Services (ACPS@).

Officer Kim Barnes of the Houston Police Department was assigned to investigate Harris=s report.  Officer Barnes reviewed the videotape of D.C.=s interview with Susan Odhiambo, a forensic interviewer at the Children=s Assessment Center (ACAC@), and learned the details of the sexual abuse D.C. alleged.  She then contacted and obtained statements from witnesses.  She also attempted to contact appellant, but her calls were not returned.  Through her investigation, she determined that the offenses against D.C. were committed at 1433 West 23rd Street in Harris County, Texas, appellant=s home.

During Odhiambo=s interview, D.C. revealed that she had been sexually abused numerous times.  D.C. stated that she was first abused around the age of seven or eight, and that the abuse continued until around April of 2004.  D.C. stated that appellant touched her on her chest, her Abutterfly,@ and her bottom. D.C. also stated that appellant touched her both over and under her clothes with his hands and mouth.  Specifically, he would rub her Abutterfly part@ and squeeze her bottom with his hand, suck on her chest with his mouth, and lick on her Abutterfly@ with his tongue. Appellant showed her his Aprivate part@ or penis, which D.C. described as a pink oval that would Aspit.@  Appellant made her touch his penis, and she described it as feeling like Aone of those toys that had jelly in it@ that when touched felt like it was Agoing to come out of your hand or fall out of your hand.@  D.C. said that these acts occurred at her grandfather=s home, and that the man who did this was her Amother=s dad@ and his name was AOscar.@

During cross-examination at trial, Odhiambo confirmed that D.C. talked about going to a store in the mall, which D.C. called Athe nasty store,@ where she saw cards with pictures of women showing parts of their bodies.  However, Odhiambo did not ask D.C. follow-up questions about this event.  When asked if D.C. had ever referred to the person who touched her as AImpa,@ Odhiambo said D.C. did not call him that and she had not heard that term before.

At trial, D.C.=s father, Edwin Chavez, testified that his family was very close to appellant, and that appellant was always there to help them if they needed it.^[2] D.C. and her younger sister would regularly stay at appellant=s home on West 23rd Street.  After the report was made to CPS about D.C., a CPS caseworker contacted Chavez and he learned that his children were in CPS custody regarding a sexual abuse allegation.  At the time, Chavez testified that he was afraid that he might not get his daughters back right away.  Once he arrived at CPS, he saw D.C., who apologized to him for not telling him earlier about the abuse. 

Chavez also testified about changes in D.C.=s behavior, which began around the age of seven or eight, such as nightmares, overeating, not sleeping, crying spells, and falling grades at school.  He took D.C. to a therapist, Dr. Sendukas.  Once she started therapy, D.C.=s behavior improved, she stopped overeating, and she would sleep better.

Chavez testified that D.C. had been with him when the family went to a Spencer=s store at the mall, where, in one section of the store, cards, games, and toys of a sexual nature are sold.  He testified that he did not allow D.C. in that section of the store, but admitted it was possible she might be aware of the nature of some of the items.  He also testified that both he and his wife were responsible for disciplining D.C. and her younger sister, J.C., and that the discipline sometimes included spanking.^[3] Chavez also testified that his parents were very protective of the girls, and his father had expressed concern about D.C. spending time with the appellant because he was not her biological grandfather.

On cross-examination, Chavez testified that two or three years earlier, his twenty-six or twenty-seven-year-old cousin stayed at their apartment, and he slept in the same bedroom as D.C.  Chavez admitted that, for unspecified reasons, he became very mad at his cousin and told him to get out, and that D.C. witnessed this event and it caused her to cry.  However, on redirect, he also testified that the reason his cousin moved out had nothing to do with D.C., and Chavez did not suspect his cousin of any inappropriate contact with D.C.  Chavez also testified that his father was a massage therapist, and he sometimes sees clients in his two-bedroom apartment.  He also testified that, when D.C. would stay with his parents, D.C. would sleep in the bed with his mother, and his father would sometimes also sleep with them or he would sleep on the floor in the living room.

Dr. Froso Sendukas, a psychotherapist for thirty-two years, testified that she provided six therapy sessions for D.C. and her family.  She helped D.C. address the drop in her grades, nightmares, crying spells, and bouts of irritability.  During the counseling sessions, D.C. consistently described who sexually abused her.  Without hesitation, she referred to the perpetrator as AImpa@ and described him as her Agrandfather from her mother=s side.@ 

D.C. testified that appellant, whom she identified in court, abused her on numerous occasions.  She testified that his name was Oscar Gutierrez, he was her grandfather on her mother=s side, and she called him AImpa.@  She stated that since she was eight years old, appellant abused her at his home, and she identified a photograph of appellant=s home as the place where she was abused.  D.C. testified that appellant would touch her chest, Aprivate,@ and bottom with his hands both over and under her clothing.  As he touched her he would say things to her such as Aoh, yeah@ and Aoh, baby.@  He also placed his mouth on her vagina several times, licking her Aprivate@ with his tongue. Appellant also would pull his pants down and touch his Aprivate@ to her Aprivate,@ and she was able to describe his private as being pink and a Areally skinny oval.@  Appellant made D.C. touch his penis with her hand, and she described his penis as being Asoft and spongy.@  Additionally, she stated that once, while in the bathroom at his home, he was Asqueezing his private with his hand@ until Awhite vomit@ came out of it. While appellant was doing that he made D.C. pull down her pants and bend over. She testified that appellant told her it was Aspit,@ and that he flushed it down the toilet.

D.C. testified that the acts would occur in one of the bedrooms or in the bathroom, and that appellant and his wife did not usually sleep in the same room.  She also said that these incidents would occur when her grandmother was not in the room because she was either in another room or outside.  D.C. also testified that she told her grandmother, appellant=s wife, about what appellant was doing to her, and her grandmother told her that if she told her again then D.C. would not be able to stay at their home anymore.  Appellant also told D.C. not to tell anybody, and after D.C. told her grandmother, appellant told D.C. not to tell anybody ever again.  D.C. did not tell her mom or dad, because she was afraid that her dad might punish or hit her. 

On cross-examination, D.C. agreed that she had always called appellant AImpa@ and referred to her father=s parents as AGrandpa@ and AGrandma.@  She also testified that when she stayed at her father=s parents= house, she slept in the same room with them, but on a separate mattress or on the floor.  On redirect, D.C. testified that although she called appellant AImpa,@ when she told R.F. what had happened to her, she referred to him as her grandfather.  When asked by the prosecutor if it was possible she was mistaken about who abused her, D.C. also specifically stated, AI=m positive that it=s this man that I=m talking about.@  She also confirmed that every time she told someone that her grandfather did these things to her, she was talking about appellant. 

After D.C.=s testimony, the State rested, and appellant presented his case-in-chief.  Appellant first called his wife, Maria Gutierrez.  Gutierrez testified that if D.C. had told her about the abuse she would have believed her because Ano child would lie@ about sexual abuse.  She acknowledged that D.C. would sometimes sleep alone with appellant, and that she and appellant slept in different bedrooms.  When asked if she now believed appellant abused D.C., she testified, AWhat I don=t believe is that she said she told me and she never told me anything.@

The defense then called Mario Chavez, D.C.=s paternal grandfather.  He testified that D.C. and her sister would sometimes spend the night at he and his wife=s two-bedroom apartment.  When asked whether they all slept in the same bedroom, he answered Ano,@ but upon further questioning, he testified that the girls would sleep with his wife, and he would sleep either on the floor of the bedroom or in the other bedroom.  On cross-examination, Chavez denied ever exposing himself to or having any inappropriate contact with D.C.  He confirmed that he told his son, Edwin, D.C.=s father, that he was concerned about the girls going over to appellant=s house because he was not biologically related to them.  On redirect, Chavez explained that he was not warning his son about a Asexual aspect,@ but rather about the girls= education and moral upbringing.

The defense also called Blanca Olivia Chavez, Mario Chavez=s wife and the paternal grandmother of D.C.  She testified that D.C. would spend the night with her and her husband from time to time and that they slept in the same room. She also testified that she did not hear D.C. refer to appellant as anything other than AImpa.@ 

Appellant also testified in his defense.  He testified that he believes that D.C. was abused; however, he denied that he sexually abused her.  He also testified that D.C. has always called him AImpa,@ and has never called him Agrandfather@ or Astep-grandfather.@  On cross-examination, appellant admitted that he noticed the changes in D.C.=s behavior when she would visit him.  He confirmed that he was her step-grandfather on her mother=s side.  He also confirmed that there were times he and D.C. would sleep in bed together with no one else around.

Joe Gutierrez, appellant=s older brother, testified that his children and grandchildren had spent time in the past, including time overnight, with appellant.  He also testified that he knew appellant to be truthful and had never known him to lie.  However, he did not know anything about the allegations D.C. made against appellant.

John Tinkle, appellant=s employer, also testified that appellant was a truthful person and had never lied to him about anything.  However, all he knew about the allegations against appellant was what appellant had told him, which was that he was accused of inappropriate activity with his granddaughter.  He had no personal knowledge about whether or not the allegations were true.

Analysis

In four issues, appellant challenges the legal and factual sufficiency of the evidence supporting the jury=s findings that he was guilty of aggravated sexual assault of a child and indecency with a child. Specifically, appellant contends D.C.=s testimony was not credible and the remaining evidence shows that someone else, possibly D.C.=s paternal grandfather, Mario Chavez, or D.C.=s twenty-six-year-old cousin, actually committed the offenses.

I.        The Legal Sufficiency of the Evidence

A.      Standard of Review

Evidence is legally sufficient if, when viewed in a light most favorable to the verdict, a rational jury could have found each element of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).  The jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence.  Jones, 944 S.W.2d at 647. Thus, when performing a legal-sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder.  Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).  We must resolve any inconsistencies in the testimony in favor of the verdict.  Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

B.      Analysis of the Legal Sufficiency of the Evidence

According to appellant, the only evidence that would support the jury=s verdicts is D.C.=s testimony, but a review of the remaining evidence shows that her testimony that he committed the offenses was not credible.  However, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that appellant committed these offenses beyond a reasonable doubt.  As the exclusive judge of the facts and the credibility of the witnesses, the jury decided they believed D.C. beyond a reasonable doubt.  She testified that appellant, also known to her as AImpa,@ her step-grandfather, her grandfather on her mother=s side, and AOscar,@ committed the sexual acts against her.  The jury heard testimony from appellant and his witnesses, and it chose to disbelieve appellant=s version, which was that someone elseCD.C.=s other grandfather or her cousinCcommitted the offenses. 

Although there were some conflicts in the testimony during trial, the jury resolved those conflicts in favor of the State, and, reviewing D.C.=s testimony and the testimony of the other witnesses in the light most favorable to the prosecution, the jury acted as a rational trier of fact in finding appellant guilty of both offenses beyond a reasonable doubt.  We therefore overrule his first and second issues.

II.       The Factual Sufficiency of the Evidence

A.      Standard of Review

When reviewing the factual sufficiency of the evidence to support a conviction, we review all the evidence in a neutral light, favoring neither party.  Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). Evidence may be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust.  Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 414B15; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  An appellate court judge cannot conclude that a conviction is Aclearly wrong@ or Amanifestly unjust@ simply because, on the quantum of evidence admitted, she would have voted to acquit had she been on the jury.  Watson, 204 S.W.3d at 417.  Nor can an appellate court declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury=s resolution of that conflict.  Id.  Additionally, we give due deference to the jury=s determinations, particularly those concerning the weight of the evidence and the credibility of witness testimony.  See Roberts, 220 S.W.3d at 524; Johnson, 23 S.W.3d at 8B9.

B.      Analysis of the Factual Sufficiency of the Evidence

According to appellant, D.C.=s testimony was not credible in light of other evidence that appellant was not guilty. Specifically, appellant points to evidence that although D.C. always called him AImpa,@ when she told R.F. and Odhiambo who had abused her, she did not call the alleged abuser AImpa,@ but rather referred to her Agrandfather@ as the perpetrator.  Appellant also contends the evidence showed that D.C. was afraid of her father and so named appellant rather than her paternal grandfather, Mario Chavez, as her abuser because she was afraid her father would punish her.^[4] Appellant also claims Mario Chavez, as a massage therapist who Atouches bodies@ for a living, had the opportunity to commit the offenses.  Appellant contends that the evidence also shows that the layout of his home and Mario Chavez=s home were similar, except that the kitchen was actually closer to the bedroom in appellant=s home, so that if something were happening in the bedroom of appellant=s home, appellant=s wife would have been able to hear it from the kitchen.  Appellant further asserts that it was suspicious that Mario Chavez Aforewarned@ D.C.=s father that appellant might abuse D.C. because she was not a blood relative, when, in contrast, appellant had never done anything to indicate that he was a sexual abuser.  Appellant also contends that Mario Chavez lied to the jury by testifying, contrary to his wife and D.C., that he never slept in the same bedroom as D.C. when D.C. spent the night at his home.

Additionally, appellant points to evidence that he had no magazines, cable television, or other means by which D.C. could have been exposed to sexual acts, while in contrast, D.C.=s parents allowed her to be exposed to Anasty@ pictures and other sexually-oriented items at a store in the mall.  Further, appellant places great emphasis on the testimony of his wife, Maria Gutierrez, who denied that D.C. ever told her that any inappropriate acts were going on and told the jury that, had D.C. told her, she would have immediately called the police. 

Thus, although appellant concedes A[i]t was clear from the testimony of the detailed acts that the commission of this offense was committed by someone against the complainant,@ the evidence shows that Athe more appropriate person@ to have committed these acts would have been D.C.=s paternal grandfather, Mario Chavez. Alternatively, appellant contends that D.C.=s cousin could have been her abuser because he was permitted to stay in the same bedroom with D.C.  In support of this alternative theory, appellant points to Edwin Chavez=s testimony that when he was contacted by CPS, he feared CPS would take his children away from him, and suggests that Edwin Chavez feared his children would be taken away because he had put them in a Adangerous situation@ with the cousin. Based on the above evidence, appellant contends that the evidence was overwhelming that he did not commit the offenses, but that someone else did. However, we disagree with appellant=s characterization of the evidence and the weight the jury properly could have assigned to it.

D.C. consistently identified appellant as the person who had abused her.  Even though the record contains conflicting testimony between appellant and D.C., the evidence, when viewed in a neutral light, is factually sufficient to support the jury=s verdicts. 

First, the State=s case was not too weak to support the jury=s verdicts.  The State called several witnesses to testify.  Regarding D.C.=s initial outcry of sexual abuse, the State called R.F., a child.  R.F. testified that her recounting of what had happened to her caused D.C. to cry, and when R.F. asked her to tell her what was wrong, D.C. told R.F. what had happened to her.  R.F. stated that what D.C. told her was Aa lot worse@ than was had happened to R.F.  Although D.C. did not tell her which specific grandfather did something to her, she did tell R.F. that the person who abused her was her grandfather.  She did not accuse her cousin of the abuse, and there is absolutely no evidence in the record that the cousin could have been her abuser.  Further, D.C. testified that, although she called appellant AImpa,@ she called him her grandfather when she was talking to R.F.

Debra Harris, the school nurse, testified about how the sexual abuse was brought to the attention of the authorities.  She spoke with R.F. and R.F.=s mother, and after she was able to locate D.C., she made a report to CPS.  Harris explained that she did not go into detail regarding the abuse with D.C., and so did not confirm which grandfather had abused D.C., but she was able to confirm that D.C. had made an allegation of sexual abuse against a grandfather.  Again, there was never any mention of a twenty-six-year-old cousin during Harris=s conversation with D.C.

Susan Odhiambo interviewed D.C. about what had happened to her, and D.C. was very descriptive about the sexual acts.  She described repeated sexual abuse by appellant.  So credible was her testimony that appellant himself conceded during his testimony that he believed D.C. had been sexually abused.  Similarly, appellant=s counsel on appeal also concedes that she was sexually abused.^[5] The only issue appellant believes her to be lying about is the identity of the person who committed the acts.  However, during the interview with Odhiambo, D.C. clearly stated who committed these acts against her.  She told Odhiambo that they happened at her grandfather=s house, that the grandfather was Aher mother=s dad,@ and that his name was AOscar.@  This specific description provided the location of appellant=s home, a description of how appellant was related to her, and appellant=s first name.

At trial and on appeal, appellant points to D.C.=s other grandfather as the one who abused D.C.; however, her other grandfather is her paternal grandfather and is named AMario.@  Mario Chavez testified at trial and denied any inappropriate touching of D.C., and at no point during the investigation or trial did D.C. ever state or even imply Mario Chavez abused her.  Additionally, appellant=s claim that Mario Chavez=s testimony is suspect because he allegedly lied to the jury when he denied ever sleeping in the same room with D.C. is not supported by the evidence.  Although Chavez initially answered Ano@ when asked, ADid y=all sleep in the same bedroom?@ when D.C. and her sister would spend the night, Chavez testified in response to further questioning that the girls would sleep in the same bedroom with his wife, and that  he would sometimes sleep on the floor in the same bedroom or in the other bedroom.  Also contrary to appellant=s assertion, Mario Chavez did not testify that he warned D.C.=s father that appellant might sexually abuse D.C. or her sister because they were not blood relatives; instead, he testified that his concern was directed to the girls= upbringing. Further, there is nothing in the record to support appellant=s suggestion on appeal that, because Mario Chavez was a massage therapist, he would be likely to commit sexual abuse of a child. 

Appellant also contends that the abuse could not have happened as D.C. testified, because the bedroom of appellant=s house was close to the kitchenCso that appellant=s wife would have heard anything happening in the bedroomCand therefore it was more likely that the abuse actually took place in the paternal grandfather=s house, where the kitchen was not as close to the bedroom.  However, contrary to appellant=s claim, D.C. did not testify that appellant=s wife was always in the kitchen when the abuse occurred.  For example, D.C. testified that the first time appellant touched her inappropriately, it was in bed in the middle of the night at appellant=s house, and appellant=s wife was in the other bedroom.  Later during her testimony, when D.C. was asked where her grandmother was when appellant was in the bedroom abusing her, she said, AProbably in the other room or in another room, like, in the kitchen or dining room or outside.@  D.C. also testified that the abuse always happened at appellant=s house, and it sometimes occurred in one bedroom and sometimes in the other bedroom.  A decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State.  Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997). 

Dr. Sendukas testified that during their sessions, D.C. referred to the man who sexually abused her as both AImpa@ and her Agrandfather from her mother=s side.@  She also established that, during these sessions, D.C. was consistent about appellant sexually abusing her and never hesitated in stating who had abused her.  This evidence contradicts appellant=s assertion that D.C. never implicated her AImpa@ as her abuser.

D.C. was ten years old when she testified at trial.  She clearly described numerous occasions of sexual abuse committed against her, including the touching of her breast, private, and bottom.  She testified that appellant touched her both over and under her clothes with his hand, and that he said things like Aoh, yeah@ and Aoh, baby.@  She also testified that appellant placed his mouth on her breast and her vagina, and made her bend over while exposed so he could look at her while he masturbated. He also pulled down his pants and placed his Aprivate@ to her Aprivate,@ and made her place her hand on his penis.  D.C. identified appellant in court as the man who committed these acts against her.  She testified that her step-grandfather=s name was Oscar Gutierrez, but she called him AImpa.@  During the trial, she pointed to appellant and identified him as being her step-grandfather, Oscar Gutierrez.  After discussing the places on her body that one should not touch, she was asked:

Q:      [State] Now, [D.C.], has anybody ever touched you on any of those places that you didn=t like?

A:      [D.C.] Yes.

Q:      Who?

A:      Him.

Q:      When you say Ahim,@ how do you know him?

A:      That is my grandfather on my mother=s side.

Q:      Your grandfather on your mother=s side?  Is that the person you identified earlier as the defendant?

A:      Yes.

Based on D.C.=s testimony, her prior statements, and the testimony of other witnesses who corroborated her statements, the State=s evidence was not too weak to justify a finding of guilt beyond a reasonable doubt.

As discussed above, evidence can also be held to be factually insufficient if there is conflicting evidence, and the great weight and preponderance of the evidence contradicts the jury=s verdict.  See Watson, 204 S.W.3d at 417.  Appellant contends that D.C. was really abused by her paternal grandfather, but was too fearful of her father to say so, and instead falsely accused appellant.  However, the record does not support the claim that D.C.=s fear was so great that she would falsely accuse appellant.  During D.C.=s testimony, she stated that she was afraid to tell her father, Edwin Chavez, that appellant had abused her because she was scared he may Apunish her or something.@  When questioned about what type of punishment she feared, she explained, Ahe=ll probably just talk to me or, like, if it was really bad or if I=ve done it twice, he might, like hit me with the belt.@  When asked how often she got punished with a belt, she said Ajust a little.@  Additionally, the testimony at trial from both D.C.=s father and appellant established that appellant helped D.C.=s family as much as her other grandparents.  There was no evidence that D.C. believed that her father would be mad at her for accusing one grandfather over the other. 

Likewise, there was no evidence that D.C. believed her father would be angry if she accused her cousin of abusing her.  Although the evidence showed that Edwin Chavez argued with his cousin and told him to get out of his house, and that this exchange made D.C. cry, there was no testimony that the reason D.C.=s father was angry with his cousin had anything to do with D.C.  Further, Dr. Sendukas testified that D.C. told her that the reason she did not tell anyone else that she had been abused was that she had tried to tell her grandmother, appellant=s wife, but her grandmother did not believe her, and so D.C. was afraid that her parents also would not believe her.

Appellant also points to the testimony of his wife, Maria Gutierrez, as evidence that D.C. is lying about who sexually abused her.  Mrs. Gutierrez testified that D.C. never told her of any sexual abuse allegations. However, D.C. testified that she did tell Mrs. Gutierrez about the abuse, and that Mrs. Gutierrez told D.C. that if she told her again about the allegations, D.C. would not be able to come back to the house.  D.C. also told Susan Odhiambo during the interview that she had told her grandmother about the abuse.  The jury was free to believe that appellant=s wife was not being truthful when she testified that D.C. had not told her about the abuse, and the jury also was free to believe that D.C. was being truthful when she told Odhiambo and Dr. Sendukas that she did tell appellant=s wife about the abuse, and also testified that she did so.

Thus, viewing the record in a neutral light, we conclude that the evidence supporting the verdicts is not so weak that the verdicts seem clearly wrong and manifestly unjust, nor was the supporting evidence outweighed by the great weight and preponderance of the contrary evidence so as to render the verdicts clearly wrong and manifestly unjust.  See Roberts, 220 S.W.3d at 524.  We therefore overrule appellant=s third and fourth issues.

Conclusion

We overrule appellant=s issues and affirm the trial court=s judgment.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed July 1, 2008.

Panel consists of Justices Fowler, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The details of R.F.=s and D.C.=s conversations with each other or with Harris were not delved into at trial.

^[2]  D.C.=s mother did not testify at trial.

^[3]  During Odhiambo=s testimony, defense counsel asked whether D.C. had indicated to her that her dad would take out his belt and threaten her with it when she got into trouble at home or if she was afraid of her dad=s belt, but Odhiambo would confirm only that she and D.C. had talked about D.C.=s dad=s belt and that he was wearing it that day.

^[4]  Specifically, appellant characterized the evidence as showing that D.C. was fearful of her father because Ashe had observed his treatment of his cousin when something occurred that the father did not like@ and she was also fearful of her father=s belt as punishment because Ashe did not believe that he would believe her and would feel like it was her fault that these acts had been committed.@

^[5]  Consequently, appellant=s arguments concerning sexually-oriented items at a store or depictions of sexual matters D.C. may have seen as a source of her testimony are irrelevant.