AFFIRM; and Opinion Filed April 26, 2017.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-16-00331-CR

                               BENITO PENA JR., Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 416th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 416-81691-2015

                             MEMORANDUM OPINION
                       Before Justices Francis, Lang-Miers, and Whitehill
                                Opinion by Justice Lang-Miers
       Appellant Benito Pena Jr. appeals convictions for four counts of sexual assault of a child

and two counts of indecency with a child. He contends the evidence is insufficient to support the

convictions. We affirm the trial court’s judgments.

                                         BACKGROUND

       The complainant, MC, was 16 years old when her mother began a relationship with

appellant in late 2013. Soon thereafter appellant and Mother began living together in Mother’s

mother’s (Grandmother’s) house. Grandmother did not approve of the way in which appellant

behaved toward Mother, which Grandmother characterized as physical, verbal, and emotional

abuse. Grandmother asked appellant to leave about four months later. He did, but Mother and the

children left with him and together they rented a home in another small town.
       Around August 2014, appellant made a “weird” request of MC. He asked her to wear

pantyhose to school under her clothes, without underwear, so he could sell them. Appellant told

MC he wanted her “extremity juices [to] get all over them” and that if she wore them with

underwear she would get a yeast infection. She wore the pantyhose under her jeans or leggings.

When she got home from school, appellant wanted to see the pantyhose. He made her take her

pants off and sit on the couch. He spread her legs and said the pantyhose were “wet” and made

her take them off and give them to him. The next time this happened, MC said there was more

“touching.” Appellant rubbed his fingers on her vagina over the pantyhose. Then he ripped the

pantyhose and put his fingers inside her vagina. She said his fingers were cold and it was

“awkward” and she was “disgusted.” She said he then “got oral,” meaning “[h]e went down there

[in her vagina] with his mouth.” She said it felt “[g]ross.” Then appellant got on top of her and

had sex with her. MC described other incidents involving pantyhose and sexual assaults. At

different times, appellant made her give him a “blow job,” made her rub his penis, touched her

vagina with his fingers, and had sex with her. Each time they smoked marijuana and sometimes

drank alcohol, which MC described as “[b]ad decisions.” MC said that from the beginning

appellant took pictures of her wearing just the pantyhose and a shirt; he said he needed the

pictures in order to sell the pantyhose. She never saw the pictures. Appellant told her she should

not tell anyone because “it would ruin our lives” and “it would be [her] fault.”

       MC testified that the abuse stopped in January 2015 because appellant and Mother broke

up. About three months later, she decided to tell Mother what happened because she “figured

they were done,” in other words, they “weren’t getting back together at all” and she knew

appellant “wasn’t coming back” and she felt “safe enough to say something then.” Mother took

MC to Grandmother’s house, and MC told Mother and Grandmother that appellant raped her.

Grandmother called the police.

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         Officer Joshua Devore responded to the call. He took MC out on the porch away from

Mother and Grandmother and talked to MC. He described MC’s demeanor as “very frightened

and physically crying, emotional.” MC gave him “specific details about what happened to her.”

He testified that he was “surprised at the amount of details that she gave” him. MC “seemed very

authentic, she was very emotional like it was traumatizing. She was reliving it when she was

telling me about it.”

         MC also went to the Children’s Advocacy Center where Lisa Martinez interviewed her

for about an hour and a half. Martinez described the process of interviewing children and

testified that she looked “for sensory details. What they felt, what they saw, what they heard,

things like that. . . . I’m also looking for chronology within the incident that took place. . . . I’m

looking for general details. Where did it happen? Who was the person that did it? Where was

everyone else around? I’m also watching her demeanor and just how she’s communicating with

me through her body language.” Martinez testified that MC gave her “many” general details

about what happened and a chronology/date range, “multiple instances of things happening” with

the ability to distinguish between those incidents, and she was able to keep those incidents

straight when questioned about them later.

         Sgt. Russell Driver, the lead investigator on the case, testified that he learned MC had

kept some of the pantyhose. He collected the pantyhose as evidence and submitted a pair with a

ripped crotch for DNA testing. The lab results showed the pantyhose contained skin cells

belonging to MC and semen cells belonging to appellant. The probability of selecting an

unrelated person who matched the skin cells or the semen cells was one in over the population of

Earth.

         The jury convicted appellant and sentenced him respectively to 16, 10, 14, and 10 years

in prison on the sexual assault convictions, and 5 years on each indecency with a child

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conviction. 1 The jury also assessed one $10,000 fine. In two issues on appeal, appellant argues

that the evidence is insufficient to support the convictions.

                                                     STANDARD OF REVIEW

          We review a challenge to the sufficiency of the evidence under the well-established

standards set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Wilson v. State, 448 S.W.3d 418,

425 (Tex. Crim. App. 2014). We view the evidence in the light most favorable to the verdict and

determine whether a rational factfinder could have found all the elements of the offense beyond a

reasonable doubt. Id. “We will uphold the verdict unless a rational factfinder must have had

reasonable doubt with respect to any essential element of the offense.” Id. In our review, we are

mindful that the jury is the sole judge of the credibility and weight of the evidence. Montgomery

v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012).

                                                             DISCUSSION

          Appellant was convicted of four counts of sexual assault of a child under penal code

section 22.011(a)(2)(A) and two counts of indecency with a child under penal code section

21.11(a)(1). See TEX. PENAL CODE ANN. §§ 21.11(a)(1), 22.011(a)(2)(A) (West 2011). Appellant

does not challenge the evidence as to any specific element of these offenses. Instead, he argues

that no rational jury could have convicted him beyond a reasonable doubt because, in essence,

the evidence of his guilt was not credible.

          For example, appellant cites evidence that Grandmother offered to pay MC to make false

allegations against appellant. He argues Grandmother “was unsuccessful in her attempts to

payoff MC until March 31, 2015” because Mother and appellant had an ongoing relationship and

they “were all relying on Appellant in many, many way[s] and for many, many things[.]” Once



   1
       The jury found appellant not guilty on one count of sexual performance by a child. See TEX. PENAL CODE ANN. § 43.25(d) (West 2016).



                                                                   –4–
Mother and appellant were no longer together, however, he argues suddenly he was “a long-time

rapist.”

           Appellant acknowledges that the jury is the sole judge of the credibility of the evidence,

but he argues that this case is “quite uncommon” in that it involves “multiple and unrelated

parties, reporting at different times about different events, that all share one glaring and troubling

detail” and that is, that Grandmother hated appellant “so much that she had in the past and

continued to the then current day encouraged MC to report false allegations of sexual abuse

against her by Appellant so Appellant could be kicked out of the picture.”

           The jury heard the testimony and reviewed the evidence. The evidence was conflicting

about what Grandmother did or said with regard to asking MC to falsely accuse appellant of

sexually assaulting MC, and at the time MC told Mother and Grandmother about what appellant

did to her, appellant was already “out of the picture.” The jury obviously believed MC’s

testimony and the physical evidence and resolved the conflict in favor of the State. We will not

second guess that decision as it turns on the credibility and weight of the evidence. See

Montgomery, 369 S.W.3d at 192. We resolve appellant’s two issues against him.

                                             CONCLUSION

           We affirm the judgments.




                                                        /Elizabeth Lang-Miers/
                                                        ELIZABETH LANG-MIERS
                                                        JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)

160331F.U05



                                                  –5–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

BENITO PENA JR., Appellant                             On Appeal from the 416th Judicial District
                                                       Court, Collin County, Texas
No. 05-16-00331-CR         V.                          Trial Court Cause No. 416-81691-2015.
                                                       Opinion delivered by Justice Lang-Miers.
THE STATE OF TEXAS, Appellee                           Justices Francis and Whitehill participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 26th day of April, 2017.




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