                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                    No. 07-12-00334-CR


                         RUBEN PEREZ-ROSALES, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 242nd District Court
                                     Hale County, Texas
              Trial Court No. B19090-1203, Honorable Edward Lee Self, Presiding

                                     August 26, 2013

                             MEMORANDUM OPINION
                    Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


      Appellant, Ruben Perez-Rosales, appeals from his conviction for aggravated

sexual assault of a child and resulting twenty-three-year sentence.1 On appeal, he

contends that the trial court erred by refusing his requested instruction on the lesser-

included offense of indecency with a child. We will affirm.




      1
          See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (West Supp. 2012).
                            Factual and Procedural History


      Appellant lived with his girlfriend, Valeria, and her four daughters, M.R., L.R.,

P.R., and A.R. One day in January 2012, appellant accompanied P.R. and A.R. to their

grandmother‘s house down the road to check on the house and take care of her dog

while she was out of town. Twelve-year-old P.R. also wanted to pick up her planner

that she had left there and went into the back bedroom in search of it. Appellant later

joined P.R. in the bedroom while A.R. stayed in the living room and watched television

with the dog.


      After some time, A.R. began to wonder what was taking appellant and P.R. so

long and went into the back bedroom to investigate. When she opened the door, she

saw that appellant had pulled P.R.‘s pants part way down and was touching P.R. ―in the

private‖ with his hand as she leaned onto the nearby bed. When A.R. came into the

room, P.R. jumped up and pulled her pants up, and, despite appellant‘s instructions not

to tell their mother about the incident, the two sisters ran down the road back to their

house and reported the incident to their mother, who took P.R. to the hospital for a

sexual assault exam.


      During the investigation which followed, appellant admitted in an interview with

Detective Ruben Liscano to having touched P.R. on more than one occasion, and, to

supplement and clarify the written statement memorializing his admission, he drew a

picture of his hand to demonstrate the depth to which he penetrated P.R. with his finger.

Appellant was charged with aggravated sexual assault of child.




                                            2
       At trial, P.R. testified that appellant touched her ―[i]n [her] private‖ and later, when

asked to clarify, testified that he touched her ―inside‖ her ―private.‖         A.R. testified

similarly as to what she saw when she walked into the bedroom that day, stating

unequivocally that appellant was touching P.R. ―in the private‖ with his hand. Liscano

testified that appellant admitted to having touched P.R.‘s genitals and demonstrated, by

way of the drawing, how deeply he digitally penetrated P.R.‘s sexual organ. SANE

Dana Wong testified that P.R. reported to her that appellant had been touching her

since he moved into the family‘s house. Wong testified that P.R. explained to her that

―touching‖ meant that he was touching her ―[i]n her privates with his privates.‖ Appellant

testified and denied having digitally penetrated P.R. or otherwise touched her

inappropriately. He maintained that his written statement was coerced.


       Appellant unsuccessfully requested an instruction on the lesser-included offense

of indecency with a child. The jury found appellant guilty of aggravated sexual assault

of a child and recommended punishment of twenty-three years in prison. The trial court

imposed sentence accordingly, and this appeal followed.             Appellant complains on

appeal of the trial court‘s refusal to include in its charge to the jury an instruction on the

lesser-include offense.


                          Standard of Review and Applicable Law


       In his sole issue on appeal, appellant contends the trial court erred by refusing to

include in its charge to the jury an instruction on the lesser-include offense of indecency

with a child.   We review a trial court‘s refusal to include a lesser-included-offense




                                              3
instruction for an abuse of discretion. See Threadgill v. State, 146 S.W.3d 654, 666

(Tex.Crim.App. 2004) (en banc).


       An offense is a lesser-included offense if, among other reasons, it is established

by proof of the same or less than all the facts required to establish the commission of

the offense charged. See TEX. CODE CRIM. PROC. ANN. art. 37.09(1) (West 2006); Hall

v. State, 225 S.W.3d 524, 527 (Tex.Crim.App. 2007).            To determine whether a

defendant is entitled to an instruction on a lesser-included offense, the Texas Court of

Criminal Appeals has developed the two-stepped Aguilar/Rousseau test. See Cavazos

v. State, 382 S.W.3d 377, 382 (Tex.Crim.App. 2012) (citing Hall, 225 S.W.3d at 535–36,

and referring to Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App. 1993) (en

banc), and Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App. 1985) (en banc)).

First, a court must determine whether the proof necessary to establish the charged

offense also included the lesser offense. Id.; Hall, 225 S.W.3d 535–36. If so, a court

must then consider whether the evidence shows that, if an appellant is guilty, he is guilty

only of the lesser offense. See Cavazos, 382 S.W.3d at 383.


Step One


       To determine whether an offense qualifies as a lesser-included offense under

article 37.09(1), Texas courts utilize the cognate-pleadings approach. Id. at 382 (citing

Ex parte Watson, 306 S.W.3d 259, 271 (Tex.Crim.App. 2009) (per curiam) (op. on

reh‘g)). The Texas Court of Criminal Appeals has explained that an offense is a lesser-

included offense of another, under article 37.09(1), if the indictment for the greater-

inclusive offense either (1) alleges all of the element of the lesser-included offense or



                                            4
(2) alleges elements plus facts (including descriptive averments, such as non-statutory

manner and means, that are alleged for purposes of providing notice) from which all of

the elements of the lesser-included offense may be deduced. See id. (quoting Watson,

306 S.W.3d at 273). This first analytical step is a question of law which does not

depend on the evidence presented at trial and calls on the court to compare the

elements alleged in the indictment with the elements of the lesser offense. See id.; Rice

v. State, 333 S.W.3d 140, 144 (Tex.Crim.App. 2011) (citing Hall, 225 S.W.3d at 535).


Step Two


       If the court determines that the offense is a lesser-included offense under article

37.09(1), it then must consider whether there is some evidence that would permit a

rational jury to find that, if the appellant is guilty, he is guilty only of the lesser offense.

Cavazos, 382 S.W.3d at 383; Hall, 225 S.W.3d at 536; Nevarez v. State, 270 S.W.3d

691, 693 (Tex.App.—Amarillo 2008, no pet.) (mem. op.).               ―This second step is a

question of fact and is based on the evidence presented at trial.‖ Cavazos, 382 S.W.3d

at 383. A defendant is entitled to lesser-included-offense instruction if some evidence

from any source raises a fact issue on whether he is guilty of only the lesser offense,

regardless of whether such evidence is weak, impeached, or contradicted.                     Id.

However, a defendant is not entitled to a lesser-included-offense instruction simply

because the evidence supporting the greater charged offense is weak, the evidence

supporting the greater charge is discredited or weakened during cross-examination, or

the jury might disbelieve crucial evidence pertaining to the greater offense. See Bignall

v. State, 887 S.W.2d 21, 24 (Tex.Crim.App. 1994) (en banc). That is, ―there must be

some evidence directly germane to a lesser[-]included offense for the factfinder to

                                               5
consider before an instruction on a lesser[-]included offense is warranted.‖ Id. ―The

evidence must establish the lesser-included offense as ‗a valid, rational alternative to

the charged offense.‘‖ Rice, 333 S.W.3d at 145 (quoting Hall, 225 S.W.3d at 536).


                                         Analysis


       Appellant contends that indecency with a child is a lesser-included offense of

aggravated sexual assault of a child when both offenses are predicated on the same

act. See Evans v. State, 299 S.W.3d 138, 143 (Tex.Crim.App. 2009). From the State‘s

brief, it appears that the State concedes as much. Having reviewed Evans and other

relevant cases on that issue and having concluded that appellant‘s contention and the

State‘s concession are well-taken, we dispatch with the first step of the

Aguilar/Rousseau test and move on to the record to address the second step where we

must determine whether the record reveals some evidence that, if appellant is guilty, he

is guilty only of the offense of indecency with a child. See TEX. PENAL CODE ANN. §

21.11 (West 2011).


       Though appellant does not specify, our reading of his brief and the record

suggests that he sought an instruction on indecency with a child by contact rather than

indecency with a child by exposure.        Compare id. §§ 21.11(a)(1), (c), with id. §

21.11(a)(2) (outlining elements of indecency with a child by sexual contact and by

exposure, respectively). An actor commits the offense of indecency with a child by

contact by engaging in ―sexual contact‖ with the child. See id. § 21.11(a)(1). ―Sexual

contact‖ means any touching by a person of the anus, breast, or any part of the genitals

of a child if done with the intent to arouse or gratify the sexual desire of any person. Id.



                                             6
§ 21.11(c). Focusing on the element relevant to our analysis, we note that a person

commits aggravated sexual assault of a child when he ―causes the penetration of the

anus or sexual organ of a child by any means.‖ See id. § 22.021(a)(1)(B)(i). Evidence

of even the slightest penetration is sufficient to uphold a conviction so long as it has

been shown beyond a reasonable doubt. See Luna v. State, 515 S.W.2d 271, 273

(Tex.Crim.App. 1974).


       P.R. testified that appellant touched her ―inside‖ her ―private‖ but, when asked if

she knew what he used to touch her ―inside‖ her ―private,‖ answered that she did not.

A.R., who walked in on and witnessed the assault, testified that appellant was touching

P.R. ―in the private‖ with ―his hand.‖ Liscano testified that appellant admitted to him that

he touched P.R. with his finger. Indeed, in his written statement, appellant stated that

he touched P.R.‘s genitals with his finger. As Liscano testified and as is contained in

the record, appellant also drew a picture of his hand and drew a line on the drawn finger

to demarcate the depth to which his finger penetrated P.R.‘s sexual organ.


       Appellant testified and denied having touched P.R., explaining that he was

coerced into making those statements by Liscano‘s assurances that he could go home if

he admitted the conduct. Nonetheless, testimony from A.R. and Liscano indicate that

appellant digitally penetrated P.R. And appellant‘s own statement and illustration do the

same. P.R.‘s testimony unequivocally indicates that appellant penetrated her sexual

organ, though she testified that she was uncertain as to what he used to do so.


       Therefore, appellant‘s contention must rely heavily on the testimony of SANE

Wong who performed the sexual assault exam on P.R. and who, in doing so, took the



                                             7
history from P.R. shortly after the incident took place. In P.R.‘s account to Wong, P.R.

explained that appellant had been touching her for several months, since he moved into

the home. P.R. explained to Wong that by ―touching‖ she meant that appellant had

been touching ―[i]n her privates with his privates.‖           Appellant also cites P.R.‘s

uncertainty as to what appellant used to penetrate her; though she was certain that he

touched ―inside‖ her privates, she did not know what he used to penetrate her.


       According to appellant, this evidence suggesting that P.R. was uncertain as to

which body part appellant used to penetrate her sexual organ means that the jury could

have believed that he did not penetrate her at all and, instead, may have merely

touched her ―private,‖ making him, therefore, guilty only of indecency with a child by

sexual contact.      In his brief, appellant summarizes his contention: ―Given the

contradictory nature of the testimony concerning the single act alleged by the State to

have been performed by Appellant, the jury certainly could have believed that Appellant

only touched, not penetrated, P.R.‘s sexual organ.‖ While there may be a degree of

confusion or uncertainty on P.R.‘s part as to what appellant used to penetrate her, the

record indicates that she is certain that he did penetrate her.2 And A.R.‘s account of the

incident and appellant‘s own illustration certainly indicate that appellant did so digitally.


       Further, while we acknowledge the fact that appellant must have contacted

P.R.‘s genitals immediately before and in the course of penetrating her sexual organ,

we note that such sexual contact occurring in the course of or incident to an act of

sexual penetration is subsumed in the completed act. See Patterson v. State, 152

       2
        Appellant does not challenge the sufficiency of the evidence to show that he
used his finger to penetrate P.R.‘s sexual organ.


                                              8
S.W.3d 88, 92 (Tex.Crim.App. 2004) (en banc). The Texas Court of Criminal Appeals

recently explained Patterson:


      In other words, a single sexual act might involve a person first exposing
      his penis, then contacting a child‘s genitals with his penis, then penetrating
      the child‘s genitals with his penis. That single, flowing, undifferentiated act
      may violate three separate Penal Code provisions, but in Patterson, we
      held that the Legislature intended only one conviction for that one sexual
      act.

Loving v. State, 401 S.W.3d 642, 2013 Tex. Crim. App. LEXIS 950, at *24–25

(Tex.Crim.App. 2013) (Cochran, J., concurring).3


      However, there is no evidence that appellant is guilty of merely making contact

with P.R.‘s sexual organ—without penetrating it—and, therefore, guilty only of

indecency with a child by contact. Rather, the record indicates that appellant is either

not guilty or is guilty of aggravated sexual assault of P.R. by digital penetration as

alleged in the indictment and as criminalized by section 22.021. The evidence appellant

cites which suggests P.R.‘s uncertainty as to how appellant penetrated P.R.‘s sexual

organ does not translate into evidence that he did not penetrate her and, instead, only

made contact with her genitals.          See TEX. PENAL CODE ANN. §§ 21.11(c),

22.021(a)(1)(B)(i); see also Bignall, 887 S.W.2d at 24. Any uncertainty as to what

appellant used to penetrate P.R. is not evidence ―directly germane‖ to the lesser-

      3
         Additionally, a number of intermediate appellate courts have relied on Patterson
in a variety of contexts to conclude that contact with the genitals that occurs in the
course of digital penetration of the female sexual organ is subsumed in the completed
act of penetration. See, e.g., Rodriguez v. State, No. 11-11-00046-CR, 2013 Tex. App.
LEXIS 1429, at *8 (Tex.App.—Eastland Feb. 14, 2013, no pet.) (mem. op., not
designated for publication); Rodriguez v. State, No. 04-11-00809-CR, 2012 Tex. App.
LEXIS 9839, at *11 (Tex.App.—San Antonio Nov. 30, 2012, pet. ref‘d) (mem. op., not
designated for publication); Soto v. State, 267 S.W.3d 327, 343 (Tex.App.—Corpus
Christi 2008, no pet.); Barnes v. State, 165 S.W.3d 75, 88 (Tex.App.—Austin 2005, no
pet.).

                                            9
included offense of indecency with a child by sexual contact such that we could

conclude that appellant was guilty only of that lesser offense. See Bignall, 887 S.W.2d

at 24. That said, the record does not establish indecency with a child by contact as ―a

valid, rational alternative to the charged offense.‖ See Rice, 333 S.W.3d at 145.


       Having concluded that appellant cannot satisfy the second prong of the

Aguilar/Rousseau test to show that he was entitled to a lesser-included-offense

instruction, we overrule his sole point of error.


                                         Conclusion


       Having overruled appellant‘s sole point of error, we affirm the trial court‘s

judgment of conviction. See TEX. R. APP. P. 43.2(a).




                                           Mackey K. Hancock
                                               Justice


Do not publish.




                                              10
