                                NO. 12-09-00318-CR

                      IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

JOSE INES GOMEZ-ESPINOZA,                    §               APPEAL FROM THE 159TH
APPELLANT

V.                                           §               JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                     §               ANGELINA COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Jose Ines Gomez-Espinoza appeals his convictions for indecency with a child, for which
he was sentenced to imprisonment for twenty years for each offense. In two issues, Appellant
contends that his convictions for indecency with a child are barred by double jeopardy and that
there was insufficient evidence to support his second indecency conviction. We affirm.


                                          BACKGROUND
       Appellant was charged by indictment with one count of aggravated sexual assault of a
child and two counts of indecency with a child.         Specifically, the indictment alleged that
Appellant had (1) intentionally or knowingly caused the penetration of the anus of the victim, a
child younger than fourteen years of age, by his finger or an unknown object and (2) in two other
instances, with the intent to arouse or gratify his sexual desire, intentionally or knowingly
engaged in sexual contact by touching the genitals of the victim, a child younger than seventeen
years of age. Appellant pleaded “not guilty,” and the matter proceeded to a jury trial.
       The evidence presented at trial indicates that the victim, eight-year-old B.G., was at his
aunt’s house attempting to sleep when Appellant approached him and, on the outside of B.G.’s
clothes, penetrated B.G.’s anus with his finger.1 B.G. testified at trial that Appellant had touched
his penis2 “lots of times” with his “whole hand” on the outside of his clothes. B.G. later clarified
that this had occurred more than twice, but fewer than ten times. B.G. further testified that
Appellant had touched him on his buttocks3 once or twice with his finger on the outside of his
clothes. Gloria Carter, B.G.’s great aunt, testified concerning B.G.’s outcry statement. Carter
related that B.G. told her of an occasion when he was in the bathroom and Appellant entered the
bathroom and touched his penis.
        Following the presentation of evidence, the jury found Appellant “guilty” as charged on
each count.       The matter proceeded to a trial on punishment. Ultimately, the jury assessed
Appellant’s punishment at imprisonment for fifty years for aggravated assault of a child and
twenty years for each count of indecency with a child. The trial court sentenced Appellant
accordingly, and this appeal followed.


                                                DOUBLE JEOPARDY
        In his first issue, Appellant contends that the trial court was without legal authority to
enter a judgment of conviction and pronounce sentence on the two counts of indecency with a
child because doing so violated Appellant’s Fifth Amendment protection against double
jeopardy. Specifically, Appellant argues that the evidence that Appellant touched B.G.’s penis is
not specific regarding time, date, or circumstance and that the bulk of the testimony concerns the
penetration of B.G.’s anus. Thus, according to Appellant, his touching and penetrating of B.G.’s
anus constituted one act.
        The Double Jeopardy Clause of the United States Constitution provides that no person
shall be subjected to twice having life or limb in jeopardy for the same offense. U.S. CONST.
amend. V. This clause protects against (1) a second prosecution for the same offense after
acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple
punishments for the same offense. Ex parte Watkins, 73 S.W.3d 264, 267 n.5 (Tex. Crim. App.

        1
           Appellant has not challenged the sufficiency of the evidence supporting his conviction for aggravated
sexual assault of a child.
        2
            B.G. referred to his penis as “private area number one.”
        3
            B.G. referred to his buttocks as “private area number two.”
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2002); see also Illinois v. Vitale, 447 U.S. 410, 415, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980).
Appellant invokes the third of these protections. Appellant did not raise this double jeopardy
claim below, but under the circumstances presented, the alleged violation may be raised for the
first time on appeal. See Shaffer v. State, 477 S.W.2d 873, 875–76 (Tex. Crim. App. 1971);
Casey v. State, 828 S.W.2d 214, 216 (Tex. App.–Amarillo 1992, no pet.) (defendant not required
to preserve claim of double jeopardy where trial court either knows or should know of former
proceedings, i.e., where former jeopardy arose in the same case).
       The test for determining whether two offenses are dissimilar for jeopardy purposes is
whether either offense requires proof of a fact that the other does not. See Blockburger v.
United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932). With regard to
sexual offenses, the court of criminal appeals has determined that the legislature intended to
punish separate acts, even though such acts might be in close temporal proximity; that is, the
legislature, through the language of the statute, has rejected grouping aggravated sexual assaults
by transaction. See Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999).
       In the case at hand, we need not determine whether Appellant committed an act of
indecency in close temporal proximity to his commission of aggravated sexual assault of a child.
B.G. testified at trial that Appellant had touched his penis “lots of times” with his “whole hand”
on the outside of his clothes. B.G. later clarified that this had occurred more than twice, but
fewer than ten times. No evidence was elicited at trial concerning the date on which these
touchings occurred. But the State is not required to prove the precise date alleged in the
indictment when, as here, an indictment alleges that an offense was committed “on or about” a
certain date. See Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997). Based on our
reading of B.G.’s testimony, we conclude that it can be reasonably interpreted to support that
Appellant touched B.G.’s penis on more than two separate instances. Thus, Appellant has not
been subjected to multiple punishments for the same offense. Accordingly, we hold that the trial
court’s judgments of conviction and sentences for indecency with a child do not violate
Appellant’s constitutional protections against double jeopardy.       Appellant’s first issue is
overruled.




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                                   EVIDENTIARY SUFFICIENCY
       In his second issue, Appellant argues that there was neither legally nor factually sufficient
evidence to support the second count of indecency with a child of which he was convicted.
Specifically, Appellant argues that the State’s evidence, taken as a whole does not support that
there was “other sexual contact made by [A]ppellant against [B.G.].”
       Legal sufficiency is the constitutional minimum required by the Due Process Clause of
the Fourteenth Amendment to sustain a criminal conviction. Jackson v. Virginia, 443 U.S. 307,
315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979); Escobedo v. State, 6 S.W.3d 1, 6
(Tex. App.–San Antonio 1999, pet. ref'd).       The standard for reviewing a legal sufficiency
challenge is whether any rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson v.
State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most
favorable to the jury’s verdict. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson, 871
S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by
the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2217–18, 72 L.
Ed. 2d 652 (1982).
       In reviewing factual sufficiency, we consider all the evidence weighed by the jury that
tends to prove the existence of the elemental fact in dispute and compare it to the evidence that
tends to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).
Although we are authorized to disagree with the jury's determination, even if probative evidence
exists that supports the verdict, our evaluation should not substantially intrude upon the jury’s
role as the sole judge of the weight and credibility of witness testimony. Id.; see Clewis v. State,
922 S.W.2d 126, 133 (Tex. Crim. App. 1996). Where there is conflicting evidence, the jury’s
verdict on such matters is generally regarded as conclusive. Van Zandt v. State, 932 S.W.2d 88,
96 (Tex. App.–El Paso 1996, pet. ref’d). Ultimately, we must ask whether a neutral review of all
the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously
weak as to undermine confidence in the jury's determination, or the proof of guilt, although
adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1,
11 (Tex. Crim. App. 2000). A verdict will be set aside “only if the evidence supporting guilt is
so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting
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evidence, as to render the conviction clearly wrong and manifestly unjust.” Ortiz v. State, 93
S.W.3d 79, 87 (Tex. Crim. App. 2002); see also Watson v. State, 204 S.W.3d 404, 417 (Tex.
Crim. App. 2006); Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003).
       Under either the legal sufficiency or factual sufficiency standard, our role is that of
appellate review, and the fact finder is the sole judge of the weight and credibility of a witness’s
testimony. Wesbrook v. State, 29 S.W.3d 103, 111–12 (Tex. Crim. App. 2000). The fact finder
may choose to believe all, some, or none of a witness's testimony. Sharp v. State, 707 S.W.2d
611, 614 (Tex. Crim. App. 1986).
       Moreover, the legal and factual sufficiency of the evidence is measured against the
elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997); see Wooley v. State, 273 S.W.3d 260, 268 (Tex. Crim.
App. 2008). Such a charge would include one that “accurately sets out the law, is authorized by
the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily
restrict the State's theories of liability, and adequately describes the particular offense for which
the defendant was tried.” Malik, 953 S.W.2d at 240.
       In order to support a conviction for indecency with a child, the State was required to
prove, among other things, that Appellant engaged in sexual contact with B.G. by touching
B.G.’s genitals. See TEX. PENAL CODE ANN. § 21.11(a)(1), (c) (Vernon Supp. 2009). Appellant
has challenged only the sufficiency of the evidence supporting his conviction for the latter count
of indecency with a child. In other words, Appellant contends that the evidence does not support
that there were two separate instances in which he touched B.G.’s genitals. Appellant does not
challenge the remaining elements of indecency with a child common to both counts for which he
was convicted. As such, we limit our analysis to whether there was sufficient evidence to
support two separate instances of Appellant’s touching B.G.’s genitals.
       The testimony of a child sexual abuse victim alone is sufficient to support a conviction
for indecency with a child or aggravated sexual assault. See TEX. CODE CRIM. PROC. ANN. art.
38.07 (Vernon 2005); Martinez v. State, 178 S.W.3d 806, 814 (Tex. Crim. App. 2005); Garcia v.
State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978). Here, as set forth previously, B.G. testified
that Appellant had touched his penis “lots of times” with his “whole hand” on the outside of his
clothes. B.G. later clarified that this had occurred more than twice, but fewer than ten times.
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Moreover, Carter testified that B.G. told her of an occasion when he was in the bathroom and
Appellant entered the bathroom and touched his penis. Based on our review of the record, we
conclude that a rational trier of fact could have found beyond a reasonable doubt that Appellant
touched B.G.’s penis in at least two separate instances. Therefore, we hold that the evidence is
legally sufficient to support the trial court’s judgment.
         Turning to the issue of factual sufficiency, Appellant notes that Carter only testified
concerning one instance related to her by B.G. in which Appellant touched his penis. Based on
our reading of Carter’s testimony, we do not conclude that B.G.’s relating only this single
instance of Appellant’s touching his genitals contradicts his own testimony that Appellant
touched his penis more than twice, but fewer than ten times. Having reviewed the record in its
entirety, we cannot conclude that the great weight and preponderance of the evidence contradicts
the verdict or that the jury’s finding of “guilty” is “clearly wrong” or “manifestly unjust.”
Therefore, we hold that the evidence is factually sufficient to support the trial court’s judgment.
         Appellant’s second issue is overruled.

                                                   DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.


                                                                 SAM GRIFFITH
                                                                    Justice




Opinion delivered August 18, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)

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