Wolfenbarger v. State

          Date Submitted: July 1, 2019

          On Appeal from the 5th District Court Bowie County, Texas Trial Court No. 16F1160-005

          Before Morriss, C.J., Burgess and Stevens, JJ.

          OPINION

          Scott E. Stevens Justice

         Dennis Wolfenbarger was convicted by a Bowie County jury of aggravated sexual assault of a child under six years of age^[1] 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.

         Since 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.

         I. Sufficient Evidence Supports the Jury's Findings

         A. Standard of Review

         In 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. App. 2007).

         In 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).

         B. Analysis

         A 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.

         Viewed in the light most favorable to the jury's verdict, the evidence at trial relevant to this issue showed that the victim, John, ^[2] 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, ^[3] he stayed home with Wolfenbarger.

         In 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 ...