Opinion issued June 21, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00361-CR
PAUL PALACIOS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 1045177
MEMORANDUM OPINION
Appellant Paul Palacios was convicted by a jury of aggravated sexual assault for an offense committed on August 3, 1994. See Act of July 18, 1987, 70th Leg., 2d C.S., ch. 16, § 1, sec. 22.021(a)(1)(B)(iii), (a)(2)(B), (b), 1987 Tex. Gen. Laws 80, 80 (1987 Penal Code section 22.021(a)(1)(B)(iii), (a)(2)(B), (b)). The jury assessed punishment at imprisonment for 20 years. Appellant brings two points of error, challenging the legal and factual sufficiency of the evidence. We affirm.
In point of error one, appellant contends the evidence is legally insufficient to support his conviction because there is no evidence that the female sexual organ of the victim was contacted as alleged in the indictment. Instead, he argues that the evidence could be consistent with contact of the victim's female sexual organ or her anus. The standard for reviewing the legal sufficiency of the evidence is whether, after reviewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979).
A person commits the offense of aggravated sexual assault if the person intentionally or knowingly causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor, and the victim is younger that 14 years of age. 1987 Penal Code section 22.021(a)(1)(B)(iii), (a)(2)(B). The indictment alleged that appellant "did . . . unlawfully, intentionally and knowingly cause the sexual organ of [the victim], a person younger than fourteen years of age and not the spouse of the [appellant], to CONTACT the SEXUAL ORGAN of [appellant]. In conducting a legal sufficiency review, this Court must measure sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would be one that accurately 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.
The victim testified at trial as follows:
Q Where were you when the defendant first approached you?
A Laying on the couch with my mom.
. . . .
Q What did the defendant do?
A He took me to the room with him and he had sex with me.
. . . .
Q What did he do with you? Where did he take you?
A He put me on this bed and I had shorts underneath my skirt - - I mean, dress, I'm sorry - - and he pulled them down and he put his penis inside of me.
Q He removed your pants. Did he also remove your underwear?
A Yes.
Q Sitting up? Laying down? Where were you?
A I was laying down.
Q On your back?
A Yes.
. . . .
Q Did you see his penis?
A No.
Q How do you know that he stuck his penis inside of you?
A Because I felt something go inside of me and it was pain.
. . . .
Q Was he on top of you at this time?
A He was standing, yeah, he was leaning towards me, yes.
Q Was he leaning over you?
A Yes.
Q And you felt his hips? I'm just asking, what did you feel?
A His body.
Q Did you feel his body connect to yours?
A Yes.
Q How did it feel when he did this?
A Painful.
Q Hurt?
A Yes.
Q About how old were you when this happened?
A How old was I? Around seven or eight.
Q Did you bleed?
A Yes, I did bleed.
Appellant testified at trial and denied touching the victim.
Appellant is correct: there is no direct evidence in the record that his penis contacted the victim's female sexual organ. In a case with a similar fact pattern and lack of direct evidence, the Texarkana Court of Appeals held that evidence that the defendant had sex with the complaining victim was legally sufficient to uphold defendant's conviction when the indictment alleged the defendant committed sexual assault exclusively by contact between the male and female sexual organs. Glover v. State, 102 S.W.3d 754, 758-59 (Tex. App.--Texarkana 2002, pet. ref'd) (circumstantial evidence of each element of offense satisfies State's legal burden under legal-sufficiency challenge). In this case, reviewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found that appellant contacted the victim's female sexual organ.
We overrule point of error one.
In point of error two, appellant challenges the factual sufficiency of the evidence concerning his contact with the victim's female sexual organ. When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder's evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5. The standard for reviewing the factual sufficiency of the evidence is whether, after considering all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006).
The only evidence contrary to the victim's testimony was appellant's denial that he touched her on the night in question. After considering all the evidence, the jury was rationally justified in finding guilt beyond reasonable doubt. We overrule point of error two.
We affirm the judgment of conviction.
Sam Nuchia
Justice
Panel consists of Justices Nuchia, Hanks, and Bland.
Do not publish. Tex. R. App. P. 47.2(b).