Affirmed and Memorandum Opinion filed December 20, 2012.
In The
Fourteenth Court of Appeals
NO. 14-12-00373-CR
RENE HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Cause No. 63478
MEMORANDUM OPINION
Appellant Rene Hernandez challenges the legal sufficiency of the evidence
supporting his conviction for two counts of sexual assault of a child under
fourteen. We affirm.
In 2010, appellant’s twenty-six year old niece, T.M., came forward
regarding numerous instances of sexual assault appellant had committed over the
course of several years of her early childhood. Appellant was indicted for three
counts of sexual assault based on her recollections: (1) on or about the 1st day of
February 1991, intentionally or knowingly causing the penetration of the mouth of
T.M., a child younger than fourteen, by the sexual organ of appellant; (2) on or
about the 1st day of September 1996, intentionally or knowingly causing the
penetration of the mouth of T.M., a child younger than fourteen, by the sexual
organ of appellant; and (3) on or about the 1st day of September 1998,
intentionally or knowingly causing the sexual organ of T.M., a child younger than
fourteen, to contact the sexual organ of appellant. T.M., who was born on January
13, 1986, was five years old when the first alleged incident occurred, ten years old
when the second incident occurred, and twelve years old when the third incident
occurred.
At appellant’s trial, T.M. testified regarding details of three specific events.
The first incident she described occurred in 1991, while she was staying overnight
at appellant’s home. She explained that she, her cousin (appellant’s daughter),
appellant, and her aunt (appellant’s wife) were lying on a mattress on the floor in
the living room. Appellant touched her through her diaper with, what she realized
as an adult looking back, was his penis.1 She testified that he brought her hand
back to touch his penis. T.M. testified, ―I remember after that having to perform
oral sex on him, but I couldn’t tell you how many times. I couldn’t tell you where
exactly. I just know that I had to do that.‖
The second incident she recalled ―vividly‖ occurred at the home of another
family member. She was between eight and nine at that time. According to T.M.,
she was in the bathroom with appellant and other people were in the house. T.M.
could not remember who else was in the house when the incident occurred or how
1
T.M. testified that she still wet the bed at night at that age, so if she spent the night away
from home, she still wore a diaper to bed.
2
she and appellant came to be in the bathroom together. She testified that she
performed oral sex on appellant while she was backed up against the bathroom
door. T.M. stated that appellant unzipped his pants, placed his hand on her head,
and put his penis in her mouth. She further testified that he ejaculated in her
mouth, that it was ―gross,‖ and that she ―spit it out.‖ She described a ―gross, sticky
smell‖ in the bathroom and recalled that the bathroom door was brown.
T.M. described the third specific incident as follows. She was at appellant’s
house when she was in the sixth grade. She was alone in a bedroom on the top
bunk of a bunk bed during the day. Appellant came in, pulled his pants down, and
rubbed his penis against her vagina. A car pulled into the driveway, and appellant
instructed her to run into the bathroom. He followed her into the bathroom and
told her that she should not worry about getting pregnant. He also gave her five
dollars and told her not to tell anyone. T.M. could not remember why she was at
appellant’s home or who arrived at the house and interrupted this assault.
T.M. also testified that she made a phone call to appellant and left a ―dirty
message‖ on his answering machine. She could not remember exactly when she
made the call, but believed it happened sometime between the first specific
incident she recalled and the second, described above. T.M.’s mother, the sister of
appellant’s wife, also testified. She explained that, when T.M. was around five or
six, T.M. made an outcry regarding inappropriate sexual behavior by appellant.2
The family decided to ―handle‖ the incident internally without notifying the police.
2
It appears that this ―outcry‖ involved the telephone message T.M. described. T.M.
testified that this leaving this message was ―a really, really big deal.‖ She remembered that
leaving the message caused ―a lot of commotion‖ and ―it was a bad time.‖ T.M. testified
regarding the phone call as follows:
I remember that [my mother] knew [about the initial sexual abuse] by that phone
call. That’s how I mentioned it. That’s how it came out was by that phone call. I
don’t remember having an actual conversation with her. I just remember
everybody knowing that it was mentioned because of that phone call.
3
T.M.’s outcry caused familial strife, but did not cause T.M.’s family to stop
interacting with appellant’s family. According to T.M., she believed that nothing
would be done because appellant ―did not get in trouble‖ the first time she
outcried, so she never told anyone about the ongoing sexual abuse. She only came
forward after she was married and had a child of her own.
The jury convicted appellant of the second and third counts described above
and acquitted him of the first count. After a punishment hearing, at which several
extraneous offenses were introduced, the jury sentenced appellant to life for each
count. The trial court entered judgment on the jury’s verdict and ordered the
sentences to run concurrently. This appeal timely ensued.
Appellant challenges the legal sufficiency of the evidence to support his
conviction of counts two and three.3 We review the sufficiency of the evidence by
considering all of the evidence in the light most favorable to the verdict and
determining whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Winfrey v. State, 323 S.W.3d
875, 878–79 (Tex. Crim. App. 2010). As is relevant here, a person commits the
offense of aggravated sexual assault of a child younger than fourteen if he
intentionally or knowingly causes the penetration of the child’s mouth by his
sexual organ or causes the child’s sexual organ to contact his sexual organ. Tex.
Penal Code § 22.021(a)(1)(B)(ii), (iii). Importantly, a victim’s uncorroborated
3
Appellant’s legal sufficiency challenge largely rests on the lack of corroboration of
T.M.’s testimony. By asserting this argument, appellant ignores the legislative mandate that,
when a victim is under the age of seventeen at the time of the offense, as T.M. was in this case,
her uncorroborated testimony can support a conviction under section 22.011 of the Texas Penal
Code. Tex. Code Crim. Proc. art. 38.02(a), (b)(1). (An earlier version of this statute was in
effect at the time of the offenses alleged here. Count two was alleged to have occurred in 1996,
when T.M. was around ten years old. Count three was alleged to have occurred in 1998, when
T.M. was around twelve years old. The corroboration requirement in effect at that time did not
apply to victims under the age of eighteen. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, §
12.01, 1993 Tex. Gen. Laws 3768 (current version at Tex. Code Crim. Proc. 38.07).)
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testimony may support a conviction for sexual assault if, at the time of the alleged
offense, the victim was seventeen years of age or younger. See Tex. Code of Crim.
Proc. art. 38.07(a), (b)(1).
As discussed above, T.M. described a specific instance in which appellant
penetrated her mouth with his sexual organ. See Tex. Penal Code §
22.021(a)(1)(B)(ii). She further detailed an incident where appellant contacted her
sexual organ with his sexual organ. See id. § 22.021(a)(1)(B)(iii). Indeed, T.M.
provided numerous specific details regarding these two offenses. Further, her
mother testified that T.M. made an outcry when she was around five or six years
old regarding inappropriate behavior by appellant. Finally, because T.M. was
under seventeen at the time of these offenses, her testimony alone is sufficient to
support appellant’s conviction for these offenses. See Tex. Code Crim. Proc. art.
38.07(b)(1); Tran v. State, 221 S.W.3d 79, 88 (Tex. App.—Houston [14th Dist.]
2005, pet. ref’d).
In short, viewing the evidence in the light most favorable to the jury’s
verdict, we conclude that a rational trier of fact could have found the essential
elements of these offenses beyond a reasonable doubt. Winfrey, 323 S.W.3d at
878–79; Tran, 221 S.W.3d at 88. Accordingly, we overrule appellant’s challenges
to the sufficiency of the evidence and affirm the trial court’s judgment.
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Brown and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).
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