Affirmed and Opinion Filed February 17, 2017




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-16-00883-CR

                                LUIS ESTRADA, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 219th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 219-82543-2015

                             MEMORANDUM OPINION
                         Before Justices Francis, Stoddart, and Whitehill
                                   Opinion by Justice Francis
        A jury convicted Luis Estrada of aggravated sexual assault of child under six years old

and two counts of indecency with a child by contact, all involving abuse of his four-year-old

grandson, and assessed concurrent prison sentences of twenty-five years on the aggravated

sexual assault and three years on each indecency count. In two issues, appellant challenges the

sufficiency of the evidence to support his convictions. We affirm.

       In March 2015, Mother and her four young sons moved to McKinney, Texas to live with

appellant, who is her father and her children’s grandfather. On the night of June 15, Mother left

her sons in appellant’s care while she went to the emergency room for treatment of her back.

The next day, her four-year-old son, D.F.V., told her appellant made him “grab his dingaling”

and put his finger in D.F.V.’s “butt.” Mother said D.F.V. referred to his penis as his “dingaling.”
Mother texted appellant, who was at work, and told him what D.F.V. had reported to her.

Appellant denied anything happened.         When appellant arrived home that night, Mother

confronted him, and he continued to deny the incident. Mother brought D.F.V. in the room and

asked him to repeat what he said. D.F.V. then said to appellant, “Grandpa remember, you made

me grab your dingaling and you put your finger in my butt.” Mother said appellant did not

respond. Instead, he walked off and acted like nothing happened.

       The next day, Mother took D.F.V. to the hospital, where he was examined by Judith

Common, a sexual assault nurse examiner. According to Common, D.F.V. told her that his

grandpa “touched his back,” pointing to his “butt” on a body map, and made him touch his penis.

D.F.V. told her appellant was “sleepwalking.” Common examined D.F.V. for physical trauma

and found none, which she said was not “uncommon” because people “who touch children in

this respect are knowledgeable enough not to leave any trauma.”           When asked on cross-

examination if she would expect to see trauma if an adult male inserted his finger in the anus of a

four-and-a-half-year-old boy and moved it several times, Common said “possibly” but not

“every time.”

       Following the examination, D.F.V. and his brothers were interviewed at the Children’s

Advocacy Center of Collin County. Only D.F.V. made an outcry of sexual abuse. Eli Molina,

the forensic interviewer, said D.F.V. told him that his grandpa touched his dingaling, which was

his penis, and put his finger in his butt and moved his finger fast. D.F.V. told Molina it hurt.

D.F.V. also told Molina that his grandpa was “sleepwalking” when it happened. Molina asked

D.F.V. how he knew that, and D.F.V. said his grandpa told him he was sleepwalking.

       Officer Adrian Guzman interviewed appellant that same day while he was in custody. At

first, appellant said he did not do anything. Later, he acknowledged touching D.F.V.’s penis

over his clothes. Then, as Guzman asked more questions, appellant said it might have happened

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“skin on skin.” Ultimately, appellant told Guzman he put his hand through D.F.V.’s pants and

touched the child’s “balls and penis.” Appellant explained he was “just playing around with

him,” it was “him being Mexican,” and it was a “cultural thing.” He denied, however, touching

D.F.V.’s anus and denied making D.F.V. touch his penis.

       D.F.V., who was five years old at the trial, testified his grandpa touched his “private

spot” with his hand and made him touch his grandpa’s private spot. When asked, D.F.V. said his

grandpa did not touch his bottom. On cross-examination, D.F.V. said appellant grabbed his hand

and made him touch his dingaling for a long time, but kept his hand still. When asked if his

grandpa touched his bottom, D.F.V. said “No.” But when asked if he ever used his finger and

put it in D.F.V.’s bottom, D.F.V. said, “Yeah.”

       Appellant testified at trial and admitted he put his hand on D.F.V.’s private area under his

clothes and thought “nothing” about it At the time, the other boys were sleeping. He said D.F.V.

was “his blood” and he was just playing with him, and it was not sexual. He denied doing it to

sexually arouse himself or D.F.V. and did not think he was doing anything wrong. He said he

would not do the same thing to a child not in his family or to a female child. He denied putting

his finger in D.F.V.’s anus and also denied having D.F.V. put his hand on his “private area.”

       In two issues, appellant argues the evidence is insufficient to prove beyond a reasonable

doubt that he committed aggravated sexual assault of a child and indecency with a child.

       In reviewing a challenge to the sufficiency of the evidence, we examine the evidence in

the light most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979). This standard accounts for the factfinder’s duty to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

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        To obtain a conviction for aggravated sexual assault of a child, the State had to prove

appellant intentionally or knowingly caused the penetration of D.F.V.’s anus with appellant’s

finger. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (West Supp. 2016).                 To obtain

convictions for indecency with a child, the State had to prove that appellant, with intent to arouse

or gratify the sexual desire of any person, engaged in sexual contact by touching part of the

genitals of D.F.V. and by causing part of D.F.V.’s hand to touch part of appellant’s genitals, and

D.F.V. was younger than seventeen years of age . See id. § 21.11(a)(1) (West 2011).

        In his first issue, appellant argues the evidence is insufficient to support aggravated

sexual assault because (1) there was no evidence of trauma to D.F.V.’s anus and (2) the

penetration was not witnessed by anyone other than D.F.V. Neither argument renders the

evidence insufficient. There is no requirement that the child’s testimony be corroborated by

medical or physical evidence nor that the act was witnessed by another person. Rather, in sexual

abuse cases, the testimony of the child victim alone is sufficient to support a finding of guilt.

TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2016); Lee v. State, 186 S.W3d 649, 656

(Tex. App.—Dallas 2006, pet. ref’d). D.F.V. testified his grandfather put his finger in his

bottom.     This testimony was consistent with what he told his mother and the forensic

interviewer. Moreover, the sexual assault nurse examiner testified it was not “uncommon” for

there to be no trauma in cases such as this. We conclude the evidence was sufficient to establish,

beyond a reasonable doubt, that appellant penetrated D.F.V.’s anus with his finger. We overrule

the first issue.

        With respect to the indecency counts, appellant argues in his second issue that the record

is “devoid of any evidence” that the acts were done for the purpose of arousing or gratifying the

sexual desire of any person. He asserts no witness offered such testimony nor was there “any




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circumstantial evidence, such as a confession or incriminating statement or proclivity to commit

sex offenses,” that would have permitted the jury that such was appellant’s purpose.

        Rarely will there be direct evidence of what an accused intended at the time of the

incident. Thus, the factfinder usually must infer intent from circumstantial evidence rather than

direct proof. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991). More

specifically, in the context of indecency with a child, the factfinder can infer the requisite intent

to arouse or gratify the sexual desire from conduct, remarks, or all the surrounding

circumstances. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.]

1981). An oral expression of intent is not required; the conduct itself is sufficient to infer intent.

Connell v. State, 233 S.W.3d 460, 467 (Tex. App.—Fort Worth 2007, no pet.) (mem. op.).

       Here, appellant waited until D.F.V.’s mother was not at home and the other children were

asleep to engage in the conduct charged. Specifically, appellant touched D.F.V.’s genitals and

made D.F.V. touch his penis and then told the child he was “sleepwalking.” Once he was

arrested, appellant initially denied engaging in any conduct but then, after giving several

different versions of what happened, admitted to touching D.F.V.’s “balls and penis” under

D.F.V.’s clothing. He justified his actions by saying he was “playing” with the child. He did not

admit making the child touch his penis.

       A rational jury could infer appellant’s intent to arouse of gratify his sexual desire from

this conduct––waiting until another adult was not present and the other children were asleep,

lying to D.F.V. that he was sleepwalking to justify his conduct, giving various accounts to police

once he was arrested, and admitting only to conduct that he believed could be construed as

“playful.”   We conclude the evidence is sufficient to support appellant’s convictions for

indecency with a child by contact and overrule the second issue.




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       We affirm the trial court’s judgments.




                                                      /Molly Francis/
                                                      MOLLY FRANCIS
                                                      JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
160883F.U05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

LUIS ESTRADA, Appellant                             On Appeal from the 219th Judicial District
                                                    Court, Collin County, Texas
No. 05-16-00883-CR         V.                       Trial Court Cause No. 219-82543-2015.
                                                    Opinion delivered by Justice Francis;
THE STATE OF TEXAS, Appellee                        Justices Stoddart and Whitehill participating.

     Based on the Court’s opinion of this date, the judgments of the trial court are
AFFIRMED.


Judgment entered February 17, 2017.




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