Opinion
No. 4-05-00655-CR
Delivered and Filed: September 13, 2006. DO NOT PUBLISH.
Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-3451, Honorable Olin B. Strauss, Judge Presiding. Affirmed.
Sitting: Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Tom Anthony Cardenas appeals his conviction for aggravated sexual assault, arguing that the evidence is legally and factually insufficient. We affirm the trial court's judgment. 1. Cardenas first complains that the evidence is legally insufficient to sustain his conviction because it did not support the jury's finding that he "penetrated" the female sexual organ of Kelly Guillory with his finger. We disagree. Any penetration that passes beyond the folds of the external female genitalia, no matter how slight, is sufficient. Sherbert v. State, 531 S.W.2d 636, 637 (Tex.Crim.App. 1976); Vernon v. State, 841 S.W.2d 407, 409-10 (Tex.Crim.App. 1992) (penetration of the vaginal canal is not required). Guillory testified that after she accepted a ride to work from Cardenas, he held a knife to her neck, and then demanded that she pull down her pants and that she masturbate him; she complied. She was able to take the knife away and stabbed Cardenas in the neck; however, when he stated he had a gun, she put the knife on the back seat. Cardenas subsequently "took two fingers, and . . . put them in [Guillory's] vagina." When asked whether Cardenas actually penetrated her sexual organ, she said, "Yes. At least just a little." Guillory further testified that Cardenas' fingers penetrated "inside the lips" of her "vaginal area." While Cardenas asserts that Guillory's testimony was "contradictory and confused," it is within the province of the jury to make credibility determinations and resolve any conflicts in the evidence. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998). "The well-established principle that credibility is judged solely by the fact finder unequivocally applies to the testimony of a victim of a sexual assault." Karnes v. State, 873 S.W.2d 92, 96 (Tex.App.-Dallas 1994, no pet.). Accordingly, we hold that a rational trier of fact could have found beyond a reasonable doubt that penetration of the female sexual organ did occur. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). We, therefore, overrule Cardenas' first issue. 2. Cardenas next argues that the evidence proving that he sexually assaulted Guillory is factually insufficient. We disagree. Testimony was presented showing that Cardenas intentionally and knowingly caused the penetration of Guillory's female sexual organ with his finger without consent, and while using a deadly weapon. See Tex. Pen. Code Ann. § 22.021(a)(1)(A)(i) (a)(2)(A)(iv) (Vernon Supp. 2005). Specifically, Guillory testified that Cardenas put a knife to her neck, told her he had a gun, and sexually assaulted her, while she feared for her life. A few days later, she identified Cardenas from a photo line-up. In addition, a DNA analysis showed that Cardenas could not be excluded as the donor of the blood found on Guillory's arm after the assault. After examining all the evidence in a neutral light, we conclude the proof of guilt is not "so obviously weak as to undermine confidence in the jury's determination," and is not greatly outweighed by any contrary evidence. Vodochodsky, 158 S.W.3d at 510. We, therefore, overrule Cardenas' second issue, and affirm the trial court's judgment.