IN THE
TENTH COURT OF APPEALS
No. 10-04-00327-CR
Christopher Shawn Martinez,
Appellant
v.
The State of Texas,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2003-523-C
MEMORANDUM Opinion
Martinez appeals his conviction for aggravated sexual assault. See Act of May 15, 2001, 77th Leg., R.S., ch. 459, § 5, 2001 Tex. Gen. Laws 893, 898 (amended 2003) (current version at Tex. Penal Code Ann. § 22.021(a) (Vernon Supp. 2004-2005)). We affirm.
In Martinez’s first issue, he contends that the evidence was legally insufficient. “In reviewing the legal sufficiency of the evidence,” the court “looks at all of 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.” Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005); accord Jackson v. Virginia, 443 U.S. 307, 319 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. [Panel Op.] 1981).
Martinez argues that the evidence of penetration was legally insufficient. The indictment alleged that Martinez “cause[d] the penetration of the female sexual organ of” the victim “by [Martinez]’s sexual organ.” In particular, Martinez argues that the victim was not credible. Martinez points to the following:
(1) complainant did not make an outcry until almost one year later after the alleged incident; (2) the outcry was not made to an adult but to a student which was overheard by another student who in turn told an adult; (3) complainant testified that appellant put his penis inside her vagina but does not see his penis; and (4) She states there was blood on the bathroom floor and on her as a result of the assault; (5) despite the bleeding physical examination of complainant showed no definitive sign of sexual abuse.
[sic] (citations omitted). Martinez also argues that the victim “may have been resentful because her mother and [Martinez’s] step-mother were in a lesbian relationship.”
The State points primarily to the direct testimony of the victim to the effect that Martinez assaulted her. The State also points to the testimony of the doctor who examined the victim over a year after the date of the assault alleged in the indictment, and who testified that there is usually no “definitive evidence” of assault, in the form of “abnormalities” such as “scarring,” when the victim is examined more than seventy-two hours after the assault. The doctor testified that the victim’s condition was consistent with having been sexually assaulted.
“When we conduct a legal sufficiency-of-the-evidence review . . . , we do not . . . assess the credibility of witnesses on each side.” Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996); accord Reeves v. State, 969 S.W.2d 471, 478 (Tex. App.—Waco 1998, pet. ref’d). Martinez acknowledges, moreover, that “the state can prove its case through the testimony of complainant alone with no medical evidence” (citing Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref’d)).
Having reviewed the evidence in the light most favorable to the verdict, we hold that a rational jury could have believed beyond a reasonable doubt that Martinez sexually assaulted the victim as alleged. The evidence was legally sufficient. We overrule Martinez’s first issue.
In Martinez’s second issue, he contends that the evidence was factually insufficient. “In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if ‘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 contrary proof.’ In conducting such a review, we consider all of the evidence weighed by the jury, comparing the evidence which tends to prove the existence of the elemental fact in dispute to the evidence which tends to disprove it.” Vodochodsky, 158 S.W.3d at 510 (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)) (internal footnote omitted). “[W]e set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.” Prible v. State, No. AP-74,487; 2005 Tex. Crim. App. LEXIS 110, at *16 (Tex. Crim. App. Jan. 26, 2005).
Martinez points to his testimony that he did not assault the victim, and again points to the victim’s testimony that she did not see Martinez’s penis and to the absence of affirmative medical evidence. Martinez acknowledges the victim’s testimony concerning the assault. The State does not separately brief Martinez’s second issue.
Viewing the evidence in a neutral light, we hold that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust, and that the evidence contrary to the verdict is not so strong that the standard of proof beyond a reasonable doubt could not have been met. The evidence was factually sufficient. We overrule Martinez’s second issue.
Having overruled Martinez’s issues, we affirm.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed September 28, 2005
Do not publish
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