Modified and Affirmed as Modified and Opinion Filed January 21, 2015
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00293-CR
ISRAEL HUERTA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F13-56173-R
MEMORANDUM OPINION
Before Justices Francis, Evans, and Stoddart
Opinion by Justice Francis
Israel Huerta appeals his conviction for aggravated sexual assault of a child. After
finding him guilty, the jury assessed punishment at eighteen years in prison. In two issues,
appellant claims the evidence is legally insufficient to support his conviction and the judgment
must be reformed. We modify the judgment and, as modified, we affirm.
In his first issue, appellant contends the evidence is legally insufficient to support his
conviction because the complaining witness, N.G., could not remember many details about the
assault. Essentially, appellant claims N.G. was not credible.
In a legal sufficiency review, we view all the evidence in the light most favorable to the
verdict and determine whether 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, 319 (1979). The
jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part
of a witness’s testimony. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
We do not engage in a second evaluation of the weight and credibility of the evidence but
“determine whether the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to the verdict.”
Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). The testimony of a child victim
alone is sufficient to support a conviction for aggravated sexual assault. Tear v. State, 74 S.W.3d
555, 560 (Tex. App.―Dallas 2002, pet. denied).
A person commits an offense if he intentionally or knowingly causes the penetration by
any means of the sexual organ of a child younger than 14 years of age. TEX. PENAL CODE ANN.
§§ 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2014). Appellant was charged with causing the
penetration of N.G.’s sexual organ with his sexual organ.
At trial, twelve-year-old N.G. said she was ten years old when her mom began dating
appellant. About a year later, she woke up early one morning because appellant was in her bed.
He took her clothes off, then removed his boxer shorts. According to N.G., he “put his thing
into” her “middle part.” N.G. kicked, screamed, and tried to get up but he forcefully held her
down. She said it felt uncomfortable and hurt. She was scared and afraid he was going to hurt
her family, especially her mom. Appellant promised her a puppy and told her it was a secret
between the two of them. He also told her they would “keep doing it and we weren’t going to
tell nobody.” When appellant left the room, N.G. went to the bathroom to wash. She then went
to her mother’s room and cried. N.G. also wrote a note saying she had been raped by appellant
and did not know what to do. She saw her younger sister in the living room and told her what
happened. When her aunt Rocio came by to pick her up for school, N.G. told her appellant had
raped her. Rocio called N.G.’s mother who came home from work. The two women drove her
–2–
to the police station where the police interviewed her. Later, Rocio drove her to the hospital for
a physical exam.
Dr. Matthew Cox is a pediatric physician who medically evaluates children in cases of
suspected abuse. He performed N.G.’s exam at Children’s Medical Hospital within hours of the
assault being reported. N.G. told the doctor what happened, including that “it hurt” but she had
no bleeding. In addition, she told Cox “water from [appellant] went inside” her. According to
Cox, N.G. had an abnormal genital examination, showing signs of a transection, or tear, of her
hymen, as well as swelling and tenderness. Cox concluded “there was definitely an injury that
was recent” and was consistent with a penetration type injury. Cox said anything causing
penetration of the vagina could tear the hymen, including “being impaled on something,” but
such an injury would not be caused by falling down or doing the splits He was not able to
perform an internal exam based on N.G.’s level of discomfort and her anxiety.
Although appellant claims we must reverse his conviction because N.G. could not
describe how it felt when she was raped and said she did not know if appellant’s penis was hard
or soft, we disagree. We do not expect or require a child victim to “testify with the same clarity
and ability as is expected of mature and capable adults.” Villalon v. State, 791 S.W.2d 130, 134
(Tex. Crim. App. 1990). The jury observed N.G. as well as other witnesses, and concluded they
were credible. N.G.’s testimony established appellant placed his penis in her vagina and did so
when she was eleven years old. A pediatric physician described the tear in her hymen as
consistent with penetration. Reviewing all the evidence, including that detailed above, in the
light most favorable to the judgment, we conclude the jury could have rationally found each
element of the offense beyond a reasonable doubt. We overrule appellant’s first issue.
–3–
In his second issue, appellant contends the trial court’s judgment should be modified to
delete “Plus Fear” under the offense for which appellant was convicted. The State concedes the
judgment should be modified.
Appellant was charged with aggravated sexual assault, including that he “did place
complainant in fear that death, serious bodily injury, and kidnapping would be imminently
inflicted on complainant.” At the conclusion of the trial, the trial court granted the State’s
motion to strike the portion alleging placing the complainant in fear. The trial court’s judgment
incorrectly states appellant was convicted of “aggravated sexual assault child under 14 plus
fear.” Because the judgment is incorrect, we sustain appellant’s second issue. We modify the
judgment to show appellant was convicted of “aggravated sexual assault child under 14” by
deleting the “plus fear” language. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26,
27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.―Dallas
1991, pet. ref’d).
As modified, we affirm the trial court’s judgment.
Do Not Publish
TEX. R. APP. P. 47.2(b)
/Molly Francis/
140293F.U05 MOLLY FRANCIS
JUSTICE
–4–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ISRAEL HUERTA, Appellant On Appeal from the 265th Judicial District
Court, Dallas County, Texas
No. 05-14-00293-CR V. Trial Court Cause No. F-1356173-R.
Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee Justices Evans and Stoddart participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
We DELETE the language “Plus Fear” from the offense for which appellant was
convicted.
As MODIFIED, the judgment is AFFIRMED.
Judgment entered January 21, 2015.
–5–