No. 13-03-117-CR
Memorandum Opinion delivered and filed August 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 36th District Court of San Patricio County, Texas.
Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.
Memorandum Opinion by Chief Justice VALDEZ.
A jury found appellant, Marcial Rodriguez, Jr., guilty of aggravated sexual assault. The trial court sentenced appellant to twenty years imprisonment in the Texas Department of Criminal Justice, Institutional Division. On appeal, appellant contends the evidence was factually insufficient to prove him guilty. We affirm.
I. FACTS
At trial, the victim's mother, Mary Linda Sierra, testified she and the victim, who was twelve years old at the time, went to spend the weekend of July 7-8, 2001 with Sierra's sister, Sandra Kay Acosta. Appellant was living with Acosta at the time. At about midnight on July 8, Sierra took the victim to an empty bedroom in the home to sleep. Sierra went to sleep around 2:30 a.m. At about 5:00 a.m., the victim knocked on Sierra's door. She was scared, shaking, and upset. The victim asked Sierra to tell appellant to leave her alone. The victim also told Sierra she did not think she was a virgin any longer. Acosta confronted appellant, but he denied any wrongdoing. The victim, Sierra, and two others left the house and went to the victim's grandmother's house, where they contacted the police. The victim, thirteen at the time of the trial, testified she was awakened by appellant the night of the incident. He pulled her shorts down, got on top of her, and spread her legs. He then repeatedly tried to penetrate her sexual organ with his sexual organ. The victim testified she struggled and asked appellant to stop, but he told her to let him finish. Although she could not see appellant during the attack because the room was dark, she knew it was appellant by his voice. After the incident, appellant told the victim to not tell Acosta or Sierra what happened. The victim ran to the bathroom, then went to Sierra's room. As she was banging on Sierra's door, she saw appellant running toward Acosta's room. Police officer Ernest Solis, Jr. said he received a call to a residence. When he arrived, he met Sierra and the victim. The victim was crying and walked as if she was sore. She complained of pain. Sierra took the victim to Driscoll Children's Hospital, where she was examined by sexual assault nurse examiner Carol McLaughlin. McLaughlin testified the victim told McLaughlin appellant removed the victim's underwear and inserted his sexual organ into her sexual organ. McLaughlin examined the victim and found no external injuries. During her examination of the victim's genitals, McLaughlin found some trauma: a one by one-half centimeter area of abrasion on the victim's sexual organ. McLaughlin testified this injury is consistent with a male sexual organ scraping against that area but could not conclusively state that a male sexual organ caused the abrasions. McLaughlin stated this type of injury could cause discomfort to the victim when she walked. McLaughlin completed a rape kit, which was submitted to the Texas Department of Public Safety Crime Laboratory for testing. Solis and another officer went to appellant's home and collected the bedding, appellant's clothing, and some tissue paper. These items also were sent to the crime laboratory for testing. Lisa Harmon Baylor, who is employed by the crime laboratory, testified she found no semen on the specimens in the rape kit. She found no semen on the bedding. She found DNA profiles on appellant's shorts and the tissue, but they did not match the victim's DNA profile. Appellant testified on his behalf and denied having any sexual contact with the victim. Dr. Lloyd White, the Nueces County Medical Examiner, also testified for appellant. Dr. White reviewed the medical records in the victim's case but did not examine the victim. Although the injuries noted by McLaughlin during the examination of the victim could have been caused by sexual trauma, Dr. White testified they also could have been caused by disease, skin conditions, or trauma from another source. II. FACTUAL SUFFICIENCY
Appellant contends the evidence is factually insufficient to support the conviction. He emphasizes the lack of injuries to the victim's external body, the absence of trauma to portions of the victim's sexual organ, and testimony the injuries found on the victim's sexual organ could have been caused by something other than a sexual assault. Appellant also directs our attention to his own testimony negating the crime. He also emphasizes the lack of forensic evidence substantiating the victim's allegations. A. Standard of Review
In reviewing the factual sufficiency of the evidence, we impartially examine all of the evidence and set aside the verdict only if "the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by the contrary proof." Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim. App. 2003). We also are required to accord due deference to the jury's determinations on the weight and credibility of the evidence. Id. We measure the factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge for the case. Adi v. State, 94 S.W.3d 124, 131 (Tex. App.-Corpus Christi 2002, pet. ref'd). This hypothetically correct jury charge sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. at 130 (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997)). The statute under which appellant was convicted states, in relevant part, a person commits aggravated sexual assault if he intentionally or knowingly causes the sexual organ of a child to contact or penetrate the sexual organ of another person, including the actor, and the child is less than fourteen years old. See TEX. PEN. CODE ANN. § 22.021(a)(1)(B)(iii), (2)(B). B. Analysis
Although appellant denied the assault and contends the lack of forensic evidence supports his testimony, the victim's testimony contradicted the appellant's testimony. The victim's account was corroborated in part by the medical evidence and Sierra's testimony. While both Dr. White and McLaughlin stated other causes could have resulted in the abrasions to the victim's sexual organ, they also testified the cause of the trauma could have been sexual assault. Although appellant emphasizes the portion of the victim's testimony that she could not see her assailant, the victim testified she recognized his voice, knew the voice belonged to appellant, and saw appellant going toward Acosta's room shortly after the incident. Moreover, when she spoke to her mother shortly after the incident, she identified appellant by name. Considering all of the evidence and giving due deference to the jury and its determinations on the weight and credibility of the evidence, we cannot conclude that the proof of guilt was so obviously weak as to undermine confidence in the jury's verdict, or that the proof of guilt, although adequate if taken alone, was greatly outweighed by the contrary proof. Accordingly, we find the evidence was factually sufficient to support the conviction. III. CONCLUSION
We overrule appellant's sole issue on appeal and affirm the judgment of the trial court.