Opinion filed September 11, 2014




                                          In The


          Eleventh Court of Appeals
                                       __________

                                 No. 11-12-00299-CR
                                     __________

                  GILBERT MIRELES BARA, Appellant
                                             V.
                      THE STATE OF TEXAS, Appellee


                      On Appeal from the 54th District Court
                            McLennan County, Texas
                       Trial Court Cause No. 2010-869-C2


                       MEMORANDUM OPINION
      Gilbert Mireles Bara appeals his jury conviction of three counts of
aggravated sexual assault of a child and one count of indecency with a child by
contact.1 For each conviction of aggravated sexual assault of a child, the jury
assessed Appellant’s punishment at confinement for a term of thirty years. For his
conviction of indecency with a child by contact, the jury assessed Appellant’s

      1
       See TEX. PENAL CODE ANN. § 21.11 (West 2011), § 22.021 (West Supp. 2013).
punishment at confinement for a term of ten years. The trial court ordered the
sentences to run consecutively. We affirm.
                                      I. The Charged Offenses
        Appellant was charged by indictment with three counts of aggravated sexual
assault of a child and one count of indecency with a child by contact. The
indictment alleged that Appellant intentionally or knowingly caused the sexual
organ of R.R., a child under the age of fourteen, to be penetrated by Appellant’s
finger on or about December 9, 1998, and again on or about December 9, 1999.
The indictment further alleged that Appellant intentionally or knowingly caused
the sexual organ of R.R. to be contacted or penetrated by Appellant’s mouth on or
about December 9, 1998.
        A person commits the offense of aggravated sexual assault if the person
intentionally or knowingly causes the penetration of the anus or sexual organ of a
child by any means. PENAL § 22.021(a)(1)(B)(i).2 A person also commits the
offense of aggravated sexual assault if the person intentionally or knowingly
causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual
organ of another person, including the actor. Id. § 22.021(a)(1)(B)(iii). An offense
of aggravated sexual assault is a felony of the first degree. Id. § 22.021(e).
        The indictment also alleged that Appellant intentionally or knowingly
caused R.R. to engage in sexual contact by causing R.R. to touch his genitals on or
about December 9, 1998. A person commits the offense of indecency with a child
by contact if, with a child younger than seventeen years of age, whether the child is
of the same or opposite sex, the person engages in sexual contact with the child or
causes the child to engage in sexual contact. PENAL § 21.11(a)(1). An offense of

        2
         In this opinion, we cite the current version of the Penal Code for ease of reference, but we note
that the version of the Code in effect at the time of the offense applies to the respective offense. With
respect to the charged offenses, the content of the Code is substantially the same now as it was at the time
of the charged offenses.
                                                     2
indecency with a child by contact is a felony of the second degree.                        PENAL
§ 21.11(d).       Appellant pleaded “not guilty” to all four charges, and the case
proceeded to trial.
                                        II. Evidence at Trial
       R.R., Appellant’s step-granddaughter, testified that she moved into her
grandmother’s house in Harlingen when she was four years old. Appellant, who at
the time was the boyfriend of R.R.’s grandmother,3 also lived at the house.
       R.R. was watching television at the house one day when Appellant “put his
finger” inside of her vagina. Appellant then forced her to move his penis “up and
down” until he ejaculated.             Appellant told R.R. not to tell anyone about the
incident and threatened to kill her grandmother if she did not obey his command.
       Later that year, R.R. awoke one morning to Appellant touching her vagina.
Appellant then asked R.R. if he could “kiss” her vagina. R.R. told him no, but “he
did it anyway[].” Appellant also put his finger inside of R.R.’s vagina and made
her move his penis “up and down” until he ejaculated.
       When R.R. was nine or ten years old, she was staying at her grandmother’s
house in Waco 4 when she entered Appellant’s bedroom and found him watching a
pornographic movie. R.R. attempted to leave the room, but Appellant forced her to
stay by grabbing her arm. Appellant then pulled R.R.’s pants and panties down
and “kissed” her vagina. Appellant also “stuck his finger in and out” of R.R.’s
vagina “a couple of times” and made her “grab” his penis until he ejaculated.
       When R.R. was eleven years old, she woke up one morning at her
grandmother’s house in Waco and found Appellant kissing her neck and back.
Appellant then “put his hands inside of [R.R.’s] panties” and “touched” her vagina.

       3
           Appellant and R.R.’s grandmother married in 2002.
       4
         R.R. explained that her grandmother moved from Harlingen to Waco when R.R. was around four
years old.
                                                   3
Appellant told R.R. not to tell anyone about the incident and reiterated his threat
that he would kill her grandmother if she did not follow his order.
      Appellant chose to testify and denied all of R.R.’s allegations. Appellant
argued that R.R. had fabricated her allegations in order to deprive him of his share
of R.R.’s grandmother’s estate.5
                                       III. Issues Presented
      Appellant presents four issues on appeal. Through his first and second
issues, Appellant contends that the evidence was insufficient to sustain his two
convictions for aggravated sexual assault of a child by penetration and that,
therefore, those convictions violate the Double Jeopardy Clause of the Fifth
Amendment, Section 14 of Article I of the Texas Constitution, and Article 1.10 of
the Texas Code of Criminal Procedure. By his third and fourth issues, Appellant
argues that the trial court erred when it refused to admit Tony Fraga’s polygraph
test results and when it assessed the fees of a court-appointed investigator as court
costs owed by Appellant.
                                     IV. Standard of Review
      We review a sufficiency of the evidence issue under the standard set forth in
Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—
Eastland 2010, pet. ref’d). Under that standard, we examine all of the evidence in
the light most favorable to the verdict and determine whether, based on that
evidence and any reasonable inferences from it, any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010).


      5
          R.R.’s grandmother died in 2009.

                                                4
      The test for determining whether a trial court properly admitted evidence is
an abuse of discretion, which is a question of whether the court acted without
reference to any guiding rules and principles. Montgomery v. State, 810 S.W.2d
372, 380 (Tex. Crim. App. 1990). A trial court’s judgment will not be reversed
unless the ruling was outside the zone of reasonable disagreement. Weatherred v.
State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).
                                    V. Analysis
      A. Sufficiency of the Evidence
      Appellant contends in his first and second issues that the evidence was
insufficient to sustain two convictions for aggravated sexual assault of a child by
penetration with a finger. He also contends that those two convictions violate the
Double Jeopardy Clause of the Fifth Amendment, Section 14 of Article I of the
Texas Constitution, and Article 1.10 of the Texas Code of Criminal Procedure.
See U.S. CONST. amend. V; TEX. CONST. art. I, § 14; TEX. CODE CRIM. PROC. ANN.
art. 1.10 (West 2005). Appellant contends that the State presented evidence that he
penetrated R.R. only one time in McLennan County with his finger.
      A person commits the offense of aggravated sexual assault of a child if he
intentionally or knowingly causes the penetration of the child’s sexual organ.
PENAL § 22.021(a)(1)(B)(i). The State may prove penetration by circumstantial
evidence, and the victim need not testify as to penetration. Murphy v. State, 4
S.W.3d 926, 929 (Tex. App.—Waco 1999, pet. ref’d). Evidence of the slightest
penetration is sufficient to uphold a conviction, so long as it is shown beyond a
reasonable doubt. Luna v. State, 515 S.W.2d 271, 273 (Tex. Crim. App. 1974);
Rodriguez v. State, 762 S.W.2d 727, 732 (Tex. App.—San Antonio 1988), pet.
dism’d, improvidently granted, 815 S.W.2d 666 (Tex. Crim. App. 1991).            In
Vernon v. State, the Court of Criminal Appeals explained that “pushing aside and
reaching beneath a natural fold of skin into an area of the body not usually exposed
                                         5
to view, even in nakedness, is a significant intrusion beyond mere external contact”
and amounts to “penetration” sufficient to sustain a conviction for aggravated
sexual assault of a child. 841 S.W.2d 407, 409–10 (Tex. Crim. App. 1992). The
court held that evidence of the defendant’s “touching” of the complainant was
sufficient to show “penetration” of the complainant’s female sexual organ where
the evidence showed that the contact was “more intrusive than contact with her
outer vaginal lips.” Id. at 409. The court further stated that the term “penetration”
“is fairly susceptible of an understanding which includes the kind of touching
proven in this case,” which was touching “under the fold of [the] lips, near the
vaginal entrance.” Id. at 409–10.
      Here, R.R. testified that, when she was nine or ten years old, Appellant
“stuck his finger in and out” of her private part “a couple of times” at her
grandmother’s house in Waco. R.R. further testified that, when she was eleven
years old, Appellant “put his hands inside of [her] panties” and “touched [her]
private part” at her grandmother’s house in Waco. R.R. testified that she used the
term “private part” to refer to her “vagina.” Given the Court of Criminal Appeals
holding in Vernon, we find that the jury could have reasonably inferred from
R.R.’s testimony that Appellant committed two separate offenses of aggravated
sexual assault of a child by penetrating R.R.’s sexual organ with Appellant’s finger
in McLennan County on two separate occasions.6 See Vernon, 841 S.W.2d at 409–
10; Lopez v. State, No. 11-03-00250-CR, 2005 WL 1116037, at *2 (Tex. App.—
Eastland May 12, 2005, pet. ref’d) (not designated for publication) (stating that, “if
appellant’s finger went past the labia majora and touched the vagina, it penetrated
the victim’s female sexual organ); see also Brooks, 323 S.W.3d at 899



      6
          The City of Waco is in McLennan County.


                                                    6
(recognizing that the jury is the exclusive judge of the credibility of the witnesses
and the weight to be given their testimony).
        Having found that the evidence was sufficient to support Appellant’s two
convictions for aggravated sexual assault of a child by penetration, we also find
that those convictions do not violate the Double Jeopardy Clause of the Fifth
Amendment, Section 14 of Article I of the Texas Constitution, or Article 1.10 of
the Texas Code of Criminal Procedure. Appellant’s first and second issues are
overruled.
        B. Exclusion of Polygraph Test Results
        Appellant argues in his third issue that the trial court erred when it refused to
admit the polygraph test results of Tony Fraga. Sergeant Scott Holt of the Waco
Police Department testified that the Waco Police Department investigated Fraga,
who was R.R.’s former stepfather, after R.R. made allegations that Fraga sexually
abused her. 7 Sergeant Holt stated that the case against Fraga was eventually
labeled “exceptionally cleared,” meaning that there was probable cause to arrest
Fraga but that something out of the police department’s control prevented an arrest.
Sergeant Holt stated that he did not understand why the case had been given that
disposition and noted that it did not make sense to him.
        During the State’s direct examination of Sergeant Holt, Appellant requested
a hearing outside the presence of the jury to determine whether the jury could hear
evidence that Fraga had passed a polygraph test administered by the Waco Police
Department in 2002. Appellant argued that the evidence should be admitted based
on the fact that the State had left the impression that someone had “messed up” in




        7
         R.R. stated that, when she was seven years old, Fraga “touch[ed]” and “kiss[ed]” her private part
on several occasions.


                                                    7
not pursuing Fraga. The trial court denied the request and stated that polygraph
test results were “absolutely prohibited” at trial.
      Texas law is clear that the results of a polygraph examination are
inadmissible for all purposes.             Leonard v. State, 315 S.W.3d 578, 580 (Tex.
App.—Eastland 2010), aff’d, 385 S.W.3d 570 (Tex. Crim. App. 2012). Appellant
acknowledges the law’s stance on polygraph test results but asks us to create an
exception in this case. We decline to do so. Unless, and until, the Court of
Criminal Appeals lifts its ban on polygraph test results, trial courts lack discretion
to admit polygraph test results for any purpose. See Leonard, 385 S.W.3d at 577
(“For more than sixty years, [the Court of Criminal Appeals has] not once wavered
from the proposition that the results of polygraph examinations are inadmissible
over proper objection because the tests are unreliable.”). Appellant’s third issue is
therefore overruled.
      C. Investigator’s Fees Assessed as Court Costs
      Appellant argues in his final issue that the trial court erred when it assessed
the fees of a court-appointed investigator as court costs. Appellant contends that
the investigator’s fees should have been considered expenses of his court-
appointed counsel. Appellant is correct that the original judgments in this case
improperly included the cost of a court-appointed investigator in the court costs
owed by Appellant. See TEX. CODE CRIM. PROC. ANN. art. 26.05(d) (West Supp.
2013) (stating that investigation fees are considered expenses of court-appointed
counsel). However, the trial court later executed judgments nunc pro tunc that
corrected the clerical error. Given that correction, we find that the issue is now
moot. 8 Accordingly, we overrule Appellant’s final issue.




      8
          At oral argument, on March 11, 2014, Appellant recognized that this issue had been resolved.

                                                    8
                              VI. This Court’s Ruling
      We affirm the judgments of the trial court.




                                                    MIKE WILLSON
                                                    JUSTICE


September 11, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




                                         9
