Opinion
No. 09-06-076 CR
Submitted on October 19, 2006.
Opinion Delivered November 29, 2006. DO NOT PUBLISH.
On Appeal from the 411th District Court, San Jacinto County, Texas, Trial Cause No. 9197. Affirmed.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
Appellant Mike Bounds was indicted for aggravated sexual assault of a child younger than fourteen years of age. Count one alleged Bounds penetrated the child's anus with his sexual organ, count two alleged Bounds penetrated the child's anus with his fingers, count three alleged Bounds penetrated the child's sexual organ with his fingers, and count four alleged Bounds penetrated the child's sexual organ with his sexual organ. A jury convicted Bounds of counts one and three and assessed punishment at fifteen years of confinement for each count. In this appeal, Bounds contends the evidence of penetration was legally and factually insufficient to support his conviction. We affirm.
Background
On direct examination, the child testified as follows:Q. (By [prosecutor]) During this time, Christmas break 2004, did [the defendant] Mike Bounds, touch you in places he shouldn't have touched you?
A. Yes.
Q. Okay. And I am showing you two sets of drawings. Okay. And the first set has a drawing of a girl. Do you recognize that?
A. Yes.
Q. Okay. And, if you could, show me one at a time where the defendant touched you. . . .
A. (Witness indicating.)
. . . .
Q. (By [prosecutor]) I'm putting a circle around that; is that correct?
A. Yes.
Q. Did he touch you at another place he shouldn't have touched you?
A. (Witness indicating.)
Q. (Indicating.)
A. (Moving head up and down.)
Q. Okay. Is that correct?
A. Yes.
Q. And would — would it also be correct over here?
A. Yes.
Q. Okay. Now, did he touch you anywhere else that he shouldn't have touched you?
A. Here.
Q. Okay. And now, am I circling the correct place?
A. Yes.
Q. Now, I have a drawing of a man over here. Do you see that?
A. Yes.
Q. Now, one at a time, can you show me what he touched you with?
A. That.
Q. Okay. And let me ask you: Where did he put that?
A. Here.
Q. Okay. You are pointing to the first figure?
A. Yes.
Q. And let me ask you: What do you call that?
A. My monkey.
Q. Okay. And is another word for that "vagina"?
A. Yes.
Q. And did he touch you anywhere else with that? And what do you call that on the — [the defendant]?
A. I don't remember.
Q. But it is circled?
A. Yes.
Q. And can I put a "No. 1" on that?
A. Yes.
. . . .
Q. Okay. Okay. Did he touch you with his hands?
A. Yes.
Q. Can I circle each hand?
A. Yes.
Q. Was it both hands?
A. Yes. Yes.
Q. Okay. Now, did he touch you — and this looks like
A. Yes.
Q. — your rear or
A. Yes.
Q. Okay. Would that be your anus?
A. Yes.
Q. What did he touch you with there?
A. This.
Q. Okay. That's what is marked No. 1; is that right?
A. Yes.The body part labeled as "1" on the diagram of the male figure was the penis. During cross-examination, the child testified that the defendant touched her "butt" with his penis. She also testified that Bounds "used baby oil and then he started raping me[.]" The State introduced into evidence the medical records pertaining to nurse Karen Trevino's examination of the child at Children's Safe Harbor Medical Services. When Trevino interviewed the child, the child told Trevino that Bounds had touched her vagina with his hands. The child also reported that the encounter hurt, and she bled. The child reported that Bounds's fingers touched her sexual organ and anus, Bounds's sexual organ touched her sexual organ, and Bounds used baby oil as a lubricant. Trevino's physical examination of the child revealed redness of the child's perianal area. The State also introduced into evidence the records from the child's school. Included in the child's school records were copies of voluntary statements made by the school's counselor, Shelia Gail Page, and assistant principal, Tammy Glaze. According to Page's statement, the child told her the following, in pertinent part:
[The child] went to use the restroom [and] when she came back [Bounds] was in the bedroom with his pants and unde[r]wear off. He grabbed [the child][,] pulled down her pants[,] and threw her down on the bed. He pushed her legs apart. She said her legs still hurt there and she pointed to her thigh area. [The child] started crying and [Bounds] slapped her on the face. She told [Bounds] to stop and that he was not suppose[d] to do that to [her]. He said he didn't care. . . . [Bounds's] private area had a thing in front and those things in back. She said it was about as long as my name plate (about 10 inches long) and was standing up. He then put his private part in her.Glaze's statement indicates that the child reported the following:
[The child] went to the restroom and when she came out, [Bounds] had his pants and underw[ear] down. She described his private part as a thing in front and those things in back, about a foot long and standing up. [The child] tried to run away. He pushed her on the bed and slapped her on the face and back. She was crying. He squeezed her thighs. . . . [The child] said it still hurt. He pulled her legs apart. She told him to stop. She said to him that he wasn't suppose[d] to do that to [her]. He said he didn't give a care (used cuss words). [The child] had on blue jeans and [a] top. He pulled her pants down. He put his private part into her. He also put his finger into her.