NO. 07-05-0352-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
AUGUST 28, 2006
______________________________
RUDY P. VALLEJO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2005-408528; HONORABLE CECIL G. PURYEAR, JUDGE
_______________________________
Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Rudy Vallejo, appeals his conviction for the offense of aggravated sexual
assault of a child and life sentence. We affirm.
Background
Appellant worked at the City Water Department where he met Jennifer Moore. After
dating Moore for several years, appellant moved in with Moore and her daughter from a
previous marriage. In February of 2005, Moore observed an incident between appellant
with her daughter that caused Moore to become concerned about appellant’s interaction
with her daughter. Moore asked her stepfather to install a security camera above her
daughter’s sleeping area. Moore’s stepfather installed a system that would record the
sleeping area and send the video to Moore’s computer. Moore would then review the video
while appellant was at work. Soon after Moore began reviewing the video, Moore observed
a recording of appellant fondling Moore’s daughter while she slept. Moore reported the
incident to the police and surrendered her computer to the police as evidence. Based on
the digital recording, appellant was charged with two counts of indecency with a child and
one count of aggravated sexual assault of a child.
At trial, appellant pled guilty to the two counts of indecency with a child, but pled not
guilty to the aggravated sexual assault of a child charge. During the trial, Moore, her
daughter, and a police officer testified to observing on the digital recording appellant placing
his mouth on Moore’s daughter’s vaginal area. Further, a condensed version of the digital
recording showing the alleged improper contact was introduced into evidence and shown
to the jury. The jury returned a guilty verdict and the trial court sentenced appellant to life
in the Institutional Division of the Texas Department of Criminal Justice.
Appellant raises two issues on appeal contending that the trial court should have
entered directed verdicts based on legally and factually insufficient evidence.
Applicable Law and Analysis
The standard of review applicable to the denial of a motion for directed verdict is the
same as that applied in reviewing the sufficiency of the evidence. Williams v. State, 937
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S.W.2d 479, 482 (Tex.Crim.App. 1996); Madden v. State, 799 S.W.2d 683, 686
(Tex.Crim.App. 1990) (challenge to the trial judge's ruling on a motion for an instructed
verdict is a challenge to the sufficiency of the evidence). When reviewing challenges to
both the legal and factual sufficiency of the evidence to support the verdict, we first review
the legal sufficiency challenge. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.
1996). If the evidence is legally sufficient to support the verdict, we then review the factual
sufficiency challenge if one is properly raised. See id. at 133.
In reviewing the legal sufficiency of the evidence, we review all the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560, 573 (1979); Ross v. State, 133
S.W.3d 618, 620 (Tex.Crim.App. 2004). The jury is the sole judge of the weight and
credibility of the evidence. Jackson, 443 U.S. at 319. Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor. Guevara v. State, 152
S.W.3d 45, 49 (Tex.Crim.App. 2004). Furthermore, the standard of review is the same for
both direct and circumstantial evidence. Id.
Appellant’s sole contention is that, as there was no testimony of actual contact of
appellant’s mouth with Moore’s daughter’s vaginal area nor direct digitally recorded
evidence clearly showing contact, the evidence was insufficient to prove each element of
the offense of aggravated sexual assault of a child.1 However, the police officer who
1
Appellant was charged with aggravated sexual assault by “intentionally and
knowingly caus[ing] the sexual organ of . . . [the] child who was then and there younger
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reviewed the tape, Moore, and the victim all testified that it appeared that appellant’s mouth
contacted the victim’s vagina. Further, the jury also had the opportunity to view the digital
recording. Though the evidence is circumstantial, the State presented evidence to the jury
covering all the elements of the offense. Viewing the evidence in light most favorable to
the verdict, any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. We conclude that the verdict is based on legally sufficient
evidence.
When an appellant challenges the factual sufficiency of his conviction, the reviewing
court must determine whether, considering all the evidence in a neutral light, the jury was
rationally justified in finding defendant guilty beyond a reasonable doubt. See Zuniga v.
State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). There are two ways in which the
evidence may be factually insufficient. First, when considered by itself, evidence
supporting the verdict may be too weak to support the finding of guilt beyond a reasonable
doubt. Id. Second, considering all of the evidence, both for and against the verdict, the
contrary evidence may be so strong that the beyond-a-reasonable-doubt standard could
not have been met. Id. at 484-85. In performing a factual sufficiency review, we are to give
deference to the fact finder’s determinations involving the credibility and demeanor of
witnesses. Id. at 481. We may not substitute our judgment for that of the fact finder unless
the verdict is clearly wrong or manifestly unjust. See id. at 481-82. An opinion addressing
factual sufficiency must include a discussion of the most important and relevant evidence
than 14 years of age, and not the spouse of the said defendant, to contact the mouth of
the said defendant.” See TEX . PENAL CODE ANN . § 22.0211 (Vernon Supp. 2005).
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that appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603
(Tex.Crim.App. 2003).
Moore testified that her suspicions were raised by appellant’s interaction with her
daughter and that the camera recorded appellant touching her daughter during the middle
of the night. Further, the jury was able to review the condensed recording and were able
to evaluate appellant’s actions and intentions. Appellant contends that the evidence is too
weak to prove beyond a reasonable doubt that his mouth came in contact with the victim’s
vagina. Specifically, appellant points to cross examination where the witnesses testified
that they could not actually see appellant’s mouth coming into contact with Moore’s
daughter’s vaginal area. Appellant further contends that the digital recording fails to clearly
show his mouth on Moore’s daughter’s vagina, and thereby concludes that the State failed
to sufficiently prove all the elements of the offense. Although the digital recording which
recorded from above the victim’s bed did not have an angle that could clearly show
appellant’s mouth contacting the victim’s vagina, the recording did show appellant moving
aside the victim’s shorts before moving his head toward the victim’s midsection. Viewing
the recording of appellant’s actions at night while the victim was asleep, the jury could have
concluded that his actions were consistent with the alleged offense. Since the jury’s
judgment is not clearly wrong or manifestly unjust, we will defer to the jury’s determination
and conclude that the evidence is not so weak as to fail to support the verdict beyond a
reasonable doubt. See Zuniga, 144 S.W.3d at 481. After reviewing all the evidence in a
neutral light, and giving deference to the jury’s determinations involving the credibility and
demeanor of witnesses, see id. at 481, we conclude that the jury was rationally justified in
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finding defendant guilty beyond a reasonable doubt. See id. at 484. We conclude that the
trial court did not err in denying appellant’s request for a directed verdict for insufficient
evidence.
Conclusion
For the foregoing reasons, we affirm.
Mackey K. Hancock
Justice
Do not publish.
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