Court of Appeals of Texas, Sixth District, Texarkana
Submitted: July 1, 2019
Appeal from the 5th District Court Bowie County, Texas Trial
Court No. 16F1160-005
Morriss, C.J., Burgess and Stevens, JJ.
E. Stevens Justice
Wolfenbarger was convicted by a Bowie County jury of
aggravated sexual assault of a child under six years of
and assessed a punishment of life imprisonment, court costs,
and the cost of electronic monitoring. On appeal,
Wolfenbarger contends (1) that legally insufficient evidence
supports the jury's finding that his victim was under six
years of age at the time of the offense and (2) that the
trial court erred by assessing the cost of electronic
monitoring against him.
we find that sufficient evidence supported the jury's
finding and that the trial court did not err in its
assessment of the cost of electronic monitoring, we will
affirm the trial court's judgment.
Sufficient Evidence Supports the Jury's
Standard of Review
evaluating legal sufficiency, we review all the evidence in
the light most favorable to the trial court's judgment to
determine whether any rational jury could have found the
essential elements of the offense beyond a reasonable doubt.
Brooks v. State, 323 S.W.3d 893, 912 (Tex Crim App
2010) (plurality op) (citing Jackson v Virginia, 443
U.S. 307, 319 (1979)); Hartsfield v State, 305
S.W.3d 859, 863 (Tex App-Texarkana 2010, pet ref'd) Our
rigorous review focuses on the quality of the evidence
presented Brooks, 323 S.W.3d at 917-18 (Cochran, J,
concurring). We examine legal sufficiency under the direction
of the Brooks opinion, while giving deference to the
responsibility of the jury "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, 443 U.S. at 318-19);
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
drawing reasonable inferences, the jury "may use common
sense and apply common knowledge, observation, and experience
gained in the ordinary affairs of life." Duren v.
State, 87 S.W.3d 719, 724 (Tex. App.-Texarkana 2002,
pet. denied) (citing Manrique v. State, 994 S.W.2d
640, 649 (Tex. Crim. App. 1999) (Meyers, J., concurring)).
The jury is also the sole judge of the credibility of the
witnesses and the weight to be given their testimony and may
"believe all of a witnesses' testimony, portions of
it, or none of it." Thomas v. State, 444 S.W.3d
4, 10 (Tex. Crim. App. 2014). We give "almost complete
deference to a jury's decision when that decision is
based on an evaluation of credibility." Lancon v.
State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
person commits aggravated sexual assault of a child when he
"[(1)] intentionally or knowingly . . . [(2)] causes the
penetration of the anus or sexual organ of a child by any
means . . . and . . . [(3)] the victim is younger than 14
years of age." Tex. Penal Code Ann. §
22.021(a)(1)(B)(i), (2)(B). This offense is classified as a
first-degree felony. Tex. Penal Code Ann. § 22.021(e).
But if the child is under six years old, the minimum
punishment is increased to twenty-five years'
imprisonment. Tex. Penal Code Ann. § 22.021(f)(1). In
this appeal, Wolfenbarger only challenges the legal
sufficiency of the evidence showing that his child victim was
under six years of age.
in the light most favorable to the jury's verdict, the
evidence at trial relevant to this issue showed that the
victim, John,  was born on March 8, 2005. When John was
four years old, he and his mother, Heather, began living with
Wolfenbarger. Heather and Wolfenbarger were eventually
married on August 13, 2010, and separated on September 22,
2011. While they were living together, Heather was employed,
and Wolfenbarger was not. Consequently, when John would be
ill and could not go to school,  he stayed home with
November 2016, when John was eleven years old, he made an
outcry to Heather and told her that Wolfenbarger "had
raped [him] and stuck his fingers in [his] butt" several
times when she was not at home. He also told her that
Wolfenbarger had threatened to kill Heather and him if he
ever told anyone. Heather did not know the dates of the
incidents, but testified that John ...