Opinion
No. 05-02-00702-CR.
Opinion Filed March 31, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-74080-WQ. Affirmed.
Before Justices WRIGHT, FITZGERALD, and LANG.
OPINION
A jury convicted Librado Gonzales of sexual assault. After appellant pleaded true to two enhancement paragraphs, the jury found the enhancement paragraphs true and assessed punishment at twenty-five years' confinement. In a single point of error, appellant contends the evidence is legally insufficient to sustain the conviction. We affirm the trial court's judgment. In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). The standard is the same for both direct and circumstantial evidence cases. See Sutherlin v. State, 682 S.W.2d 546, 548-49 (Tex.Crim. App. 1984); Edwards v. State, 813 S.W.2d 572, 575 (Tex.App.-Dallas 1991, pet. ref'd) (en banc). The State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused his mouth to contact or penetrate the sexual organ of another person, without that person's consent. See Tex. Pen. Code Ann. § 22.011(a)(1)(C) (Vernon 2003). A sexual assault is without the consent of the other person if the actor compels the other person to submit or participate by the use of physical force or violence. See id. § 22.011(b)(1). The record contains evidence that on April 22, 2001, V.G., appellant's great-niece, attended a family party at which she saw appellant. Sometime around 2:00 a.m., V.G. asked appellant to give her a ride home because her mother had already left the party. Appellant drove a friend home first, then he drove to a wooded area in the 1000 block of Sylvan Street. After V.G. got out of the car, appellant asked her to pull down her shorts. V.G. refused. Appellant pulled down V.G.'s shorts and underwear, put her on the trunk of his car, pulled her legs apart, and began kissing and licking her vagina. V.G. told appellant "no" and "stop" and tried to push him away. Appellant then told V.G. to lay on the ground. She refused. Appellant pulled V.G. down to the ground, then he tried to insert his penis into her vagina. V.G. continued to say "no" and "stop." When appellant finally stopped, he told V.G. he was sorry and he would take her home. Appellant offered to give V.G. a car if she agreed not to tell anyone about the incident. V.G. got home around 3:00 a.m., woke her sister, and told her appellant tried to rape her. V.G. went to police later that morning. Appellant argues the evidence is legally insufficient because there was no evidence of the essential element of physical force or violence beyond a reasonable doubt; the complainant voluntarily laid down and opened her legs, and she was not physically hurt. Appellant further argues that no evidence other than the complainant's testimony showed he committed the offense. The State responds the evidence is sufficient to show appellant used physical force to compel the complainant to submit to the sexual assault. V.G. testified appellant pulled down her shorts and underwear, put her on the trunk of his car, pulled her legs apart, and kissed and licked her vagina. After she refused to lie on the ground, appellant pulled her down to the ground and tried to insert his penis into her vagina. Sexual assault is defined by the attacker's compulsion, not by the victim's resistance. See Wisdom v. State, 708 S.W.2d 840, 842-43 (Tex.Crim.App. 1986). There is no requirement that a certain amount of force be used. See Tex. Pen. Code Ann. § 22.011(b). Rather, the issue is whether sufficient evidence exists to show appellant compelled the victim's submission by actual force. See Barnett v. State, 820 S.W.2d 240, 240 (Tex.App.-Corpus Christi 1991, pet. ref'd). The facts in each individual case determines whether force was used. See Gonzales v. State, 2 S.W.3d 411, 415 (Tex.App.-San Antonio 1999, no pet.). Moreover, a sexual assault conviction may be affirmed absent any medical evidence and solely on the testimony of the victim. See Rodriguez v. State, 819 S.W.2d 871, 873-74 (Tex.Crim.App. 1991). Even though appellant denied he had any type of sexual contact with V.G., it was the jury's job to resolve any conflicts in the evidence. See Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984). This Court may not substitute its determination for that of the jury. See Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Having reviewed all of the evidence under the appropriate standard, we conclude it is legally sufficient to support the conviction. See Jackson, 443 U.S. at 318-19; Barnett, 820 S.W.2d at 240. We overrule appellant's sole point of error. We affirm the trial court's judgment.