Gary Montgomery v. State ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00080-CR

Gary Montgomery,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 361st District Court

Brazos County, Texas

Trial Court No. 05-03937-CRF-361

ORDER

            Our abatement order issued on March 26, 2 008 is withdrawn.  This proceeding is reinstated.

            Montgomery’s motion for extension of time to file his appellate brief is granted.  His brief is due June 13, 2007. 

            Louis Gimbert is recognized as having been substituted for attorney David Barron, according to Judge Smith’s order of April 18, 2008.

                                                                        PER CURIAM

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

(Chief Justice Gray concurs in part and dissents in part)

Appeal reinstated

Motion granted

Order issued and filed June 11, 2008

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whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004) (quoting Jackson v. Va., 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)).

            To support his position, Wiggins refers to the lack of physical evidence, inconsistencies in some aspects of C.P.’s testimony, and the testimony of several defense witnesses (as well as Wiggins himself) who essentially testified either that the sexual assaults could not have happened or did not happen.  By viewing the evidence in this manner, however, Wiggins is not “viewing the evidence in the light most favorable to the prosecution.”  See id.

            Instead, when viewed in the light most favorable to the prosecution, the lack of physical evidence is consistent with the nurse’s testimony that there is often no physical evidence in this type of case.  The inconsistencies in C.P.’s testimony are easily explained by her young age and the stress of testifying.  And a rational trier of fact may well have determined that the testimony of the defense witnesses was not credible.  See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (when reviewing legal insufficiency complaint, appellate court must “defer to the jury’s credibility and weight determinations”).

            When viewed in the light most favorable to the prosecution, the combined testimony of C.P., her grandmother, and the nurse constitute legally sufficient evidence to support the conviction.  See Ozuna v. State, 199 S.W.3d 601, 606-09 (Tex. App.—Corpus Christi 2006, no pet.); Carty v. State, 178 S.W.3d 297, 303 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d); Mosley v. State, 141 S.W.3d 816, 821-23 (Tex. App.—Texarkana 2004, pet. ref’d).  Accordingly, we overrule Wiggins’s sole point and affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed July 11, 2007

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