IN THE
TENTH COURT OF APPEALS
No. 10-15-00044-CR
DANNY XAVIER REYNOSO,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2013-387-C2
MEMORANDUM OPINION
Danny Xavier Reynoso was convicted of two counts of aggravated sexual assault
of a child (Counts I and II) and two counts of indecency with a child by contact (Counts
IV and V). TEX. PENAL CODE ANN. §§ 22.021(a)(1)(B)(i); 21.11(a)(1), (c) (West 2011). He
was sentenced to 36 years in prison for each aggravated sexual assault count and 15
years in prison for each indecency count. Because the evidence is sufficient to support
the jury’s determination that Reynoso’s actions were voluntary, we affirm the trial
court’s judgment.
BACKGROUND
H.R., the four-year-old niece of Reynoso, was spending the night at her
grandmother’s house. Reynoso lived there as well. He came home from having a few
beers after work and, after eating, laid down on a sectional couch with H.R. The next
morning, H.R. told her mother that Reynoso had touched her. The police were notified,
and an interview and sexual assault exam were conducted.
SUFFICIENCY OF THE EVIDENCE
In his sole issue, Reynoso contends the evidence is insufficient to establish that
his conduct in each count was voluntary. In his statement to police and after denying
he committed the offenses, Reynoso made various claims that he may have
unknowingly done things to H.R. in his sleep, while he was blacked out, or because he
was intoxicated. He did not request an instruction in the charge to the jury regarding
the voluntariness of his actions.
Standard of Review
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the
light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
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13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to
support the conviction." Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).
The Court of Criminal Appeals has also explained that our review of "all of the
evidence" includes evidence that was properly and improperly admitted. Conner v.
State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,
326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence
are treated equally: "Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is
well established that the factfinder is entitled to judge the credibility of witnesses and
can choose to believe all, some, or none of the testimony presented by the parties.
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
Voluntary Actions
As charged in this case, a defendant commits aggravated sexual assault of a child
if he intentionally or knowingly causes the penetration of the sexual organ or anus of a
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child younger than fourteen years of age by any means. TEX. PENAL CODE ANN. §§
22.021(a)(1)(B)(i), (a)(2)(B) (West 2011). Further a defendant commits indecency with a
child when he engages in sexual contact by touching the breast of a child younger than
seventeen years of age with the intent to arouse or gratify the sexual desire of any
person. Id. § 21.11(a)(1), (c). However, "the issue of the voluntariness of one's conduct,
or bodily movements, is separate from the issue of one's mental state." Adanandus v.
State, 866 S.W.2d 210, 230 (Tex. Crim. App. 1993). Section 6.01(a) of the Texas Penal
Code requires a voluntary—i.e., volitional—act as an element of guilt. TEX. PENAL CODE
ANN. § 6.01(a) (West 2011) ("A person commits an offense only if he voluntarily engages
in conduct, including, an act, an omission, or possession."). This is a distinct inquiry
from the knowing or intentional mens rea requirement established by the provisions of
section 22.021(a)(1)(B). Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014).
"Voluntariness," within the meaning of Section 6.01(a), refers only to one's
own physical body movements. If those physical movements are the
nonvolitional result of someone else's act, are set in motion by some
independent non-human force, are caused by a physical reflex or
convulsion, or are the product of unconsciousness, hypnosis, or other
nonvolitional impetus, that movement is not voluntary.
Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim. App. 2003).
Evidence
On appeal, Reynoso focuses on his claim at trial that he was unconscious by
being asleep or having blacked out during the time H.R. was assaulted and touched to
support his argument that his actions were involuntary. He further argues there was
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insufficient evidence to show otherwise. We disagree.
In his statement to police, Reynoso tried to advance different theories as to how
the assault or contact could have occurred. At trial, he tried to stick with the theory that
he did not commit the offenses, expressly denying that he blacked out. He eventually
stated again, however, that there was a period of time during the night that he could
not remember.
Reynoso admitted at trial that he gave these various rationalizations to police
because he thought the police had more physical evidence against him of a sexual
assault. Reynoso admitted to police that he slept in the living room with H.R. and that
H.R. laid down with him after he had fallen asleep. And he testified at trial that they
were sleeping on the couch, shoulder to shoulder. Reynoso told police that he could not
deny that the offenses occurred because he may have elbowed or kicked her and she
took it the wrong way. But he also told police that he had previously thought about
touching H.R. and that he thought she was pretty. At trial, Reynoso tried to minimize
these statements saying he did not mean them in a sexual way. But his expert witness
thought those statements were “damning,” stating, “[Reynoso] said some things about
the child that suggested interest, sexual interest in her, spoke of her almost like a
girlfriend as opposed to a young child,…, admitted that he had some sexual thoughts
and, …, that he had touched her in some manner.” Reynoso’s expert agreed that
because Reynoso had told so many stories, Reynoso could not be considered consistent
Reynoso v. State Page 5
in his explanations of what had occurred.
The jury also heard evidence that after a warrant was issued for Reynoso’s arrest,
Reynoso fled to Mexico for two and a half months. He was apprehended trying to re-
enter the United States.
Reynoso further argues on appeal that because there was evidence that he had
touched his girlfriend in a similar manner when they were sleeping together, the
evidence was insufficient to show his actions as to H.R. were voluntary. We disagree.
Reynoso offered this evidence through his own testimony and agreed that he was not
laying with H.R. in the same position as he had with his girlfriend. Further, no
girlfriend testified to confirm that she had been similarly touched at a time Reynoso
was asleep or in a manner that would have made the touching anything other than
voluntary.
Reynoso also argues that because H.R.’s forensic examination report was not
introduced into evidence, this somehow makes the statements H.R. gave to the forensic
doctor insufficient to show Reynoso’s actions were voluntary. Again, we disagree.
H.R.’s statements to the examining doctor were brought to light during the doctor’s
testimony. H.R. told the doctor that Reynoso picked up H.R.’s shirt and pulled down
H.R.’s pants. H.R. demonstrated to the doctor that Reynoso’s finger went inside her
anus and into her genitals. She also told the doctor that Reynoso put his mouth on her
chest. At trial, H.R. had difficulty testifying about the offenses, but indicated that
Reynoso v. State Page 6
Reynoso touched her on her “front” and “bottom” where no one was supposed to
touch.
CONCLUSION
Based on the evidence presented, we find the jury could have resolved any
inconsistencies in the testimony against Reynoso and could have found beyond a
reasonable doubt that Reynoso’s actions were voluntary. Accordingly, Reynoso’s sole
issue is overruled, and the trial court’s judgment is affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 13, 2015
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