                                    NO. 07-05-0099-CR
                                    NO. 07-05-0100-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                 SEPTEMBER 9, 2005
                           ______________________________

                                  JUAN ANGEL IBARRA,

                                                                 Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                       Appellee
                         _________________________________

                FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

NOS. A15686-0408 AND A15687-0408; HON. ROBERT W. KINKAID, JR., PRESIDING
                    _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       Appellant, Juan Angel Ibarra, appeals his convictions for two counts of aggravated

sexual assault and two counts of burglary of a habitation. In two issues, he argues that 1)

the evidence is legally and factually insufficient to support the convictions, and 2) the trial

court erred when it cumulated his sentences. We affirm the judgments in part and reform

in part.

                                        Background

       On July 22, 2004, April DeeAnn Parker was in her trailer home with her two children

while her husband was working the night shift. Around 1:00 a.m., she took some trash to
the dumpster and, as she returned, she heard her children screaming. When she opened

the door, she saw a man later identified as appellant standing behind it. She struck him,

and he began beating her with his fists. Her head was banged into a chest, and appellant

choked her. She passed out and when she awoke she was leaning against the chest.

Appellant told her he wanted the keys to her car and that he wanted “pussy.” When she

began to fight him, he told her he would get it from her daughter which she took to mean

appellant would have sexual intercourse with her daughter. Because Parker did not know

where her children were at that moment, she removed her shorts as appellant requested.

Appellant attempted to have anal sex with Parker, made her perform oral sex, and

penetrated her vaginally with an object which she believed to be his hand or his penis. In

addition to threatening Parker’s daughter, appellant threatened to kill Parker during the

episode.

      Before appellant finished, there was banging at the door by Oscar Hernandez, a

neighbor of Parker’s. Hernandez’ wife, Hermalinda Zepeda, had been awakened by

Parker’s children who had come to the door screaming that a man was choking their

mother. Zepeda called the police and wakened Hernandez who went to Parker’s trailer.

      Upon hearing the banging at the door, appellant jumped off of Parker. The latter

then ran out the door yelling and crying that she had been raped. Thereafter, appellant

was seen either pulling his pants up or buttoning them. He also came out on the porch,

stood momentarily with Hernandez, and then ran away.

                       Issue 1 - Legal and Factual Sufficiency

      In his first issue, appellant contends the trial court should have granted his motion

for directed verdict because the evidence is not sufficient to sustain the convictions. We

overrule the issue.

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      The standards by which we review the legal and factual sufficiency of the evidence

are well established. We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004);

Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556

(Tex. Crim. App. 2000) for an explanation of them.

      The State was required to prove that 1) appellant intentionally and knowingly caused

the penetration of the female sexual organ and the mouth of Parker without her consent,

2) that by acts or words he threatened to cause or place her in fear that serious bodily

injury and death would be imminently inflicted upon her and that serious bodily injury by

aggravated sexual assault of a child would be inflicted upon her daughter, and 3) the acts

or words of threat occurred in the presence of Parker.        See TEX . PEN . CODE ANN .

§22.021(a) (Vernon Supp. 2004-05). As to the burglary charges, the State had the burden

to show that appellant intentionally and knowingly entered a habitation without the consent

of Parker with the intent to commit the offense of aggravated sexual assault and that he

intentionally and knowingly entered a habitation without the consent of Parker and

attempted to commit or did commit the offense of aggravated sexual assault. See id.

§30.02(a) (Vernon 2003).

       Appellant argues that his statement shows his entry to Parker’s home was

consensual and that she instigated any sexual contact. Furthermore, he claims, other than

Parker’s “uncorroborated testimony and written statement,” there is no evidence that a

burglary or sexual assault took place.

       However, the testimony of the victim alone is sufficient to support a conviction for

aggravated sexual assault. Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.–Houston [14th

                                            3
Dist.] 2002, pet. ref’d); Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.–San Antonio 1993,

pet. ref’d); Aleman v. State, 795 S.W.2d 332, 335 (Tex. App.–Amarillo 1990, no pet.). And,

to the testimony of Parker about the unauthorized entry into her home and the physical and

sexual assault by appellant, we must also add the evidence that 1) Parker’s children

reported to neighbors that their mother was being choked, 2) Hernandez saw appellant

either pulling up his pants or buttoning them when he emerged from the trailer, 3) Parker

was dressed in a black t-shirt without any pants at the time officers arrived, 4) Hernandez

heard Parker yelling when he arrived outside her home, 5) Parker arrived at the hospital

soon after the assault in an upset, disheveled state, with “numerous, obvious bruises and

abrasions,” and crying (behavior deemed consistent with that exhibited by a rape victim),

6) Parker sustained fresh pattern bruises from fingers as if being forcefully grabbed, 7)

Parker had a tear on her tongue, and 8) it was not uncommon for there to be a lack of DNA

or other physical evidence after a sexual assault.

       This evidence, when considered with Parker’s testimony, is sufficient for a rational

trier of fact to reasonably conclude beyond a reasonable doubt that appellant committed

aggravated sexual assault and burglary of a habitation as alleged in the two indictments.

Moreover, even though appellant gave a statement that he entered the home with consent

and any sexual contact was also consensual, the jury was free to disbelieve that evidence.1

Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997) (holding that the weight to

give contradictory testimonial evidence is within the sole province of the jury). Considering

all the evidence in a neutral light, we conclude that the evidence was both legally and

factually sufficient to support conviction for each offense.

       1
           Appellan t initially den ied to o fficers that he had ever bee n in the trailer.

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                         Issue 2 - Cumulation of Sentences

      Appellant asserts in his second issue that the trial court erred in cumulating his

sentences. The State concedes this error. Accordingly, we sustain the issue and will

modify the judgments accordingly.

      We reform the judgments to provide that the sentences levied upon appellant run

concurrently to each other and affirm them as modified.



                                               Per Curiam

Do not publish.




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