
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

)
    )    No. 08-03-00468-CV
)
IN THE MATTER OF A.B., A JUVENILE.      )                              Appeal from
)
)        65th District Court
)
)  of El Paso County, Texas
)
)          (TC# 98,00401)

O P I N I O N

            A.B. appeals the juvenile court’s finding that he engaged in delinquent conduct in two counts
of aggravated sexual assault.  Count I alleged A.B. engaged in delinquent conduct by intentionally
and knowingly penetrating the sexual organ of A.A., a child younger than fourteen, with his finger. 
Count II alleged the intentional and knowing penetration of the child’s anus with his finger  Finding
the evidence sufficient, we affirm.
FACTUAL SUMMARY
            Graciela Vega lived in a three bedroom, two bath house with a den.  She rented the den and
a bathroom to Maria Estrada and her three children.  The den was separated from the rest of
Graciela’s house and had a separate entrance.  Graciela had never before asked Maria to care for
A.A., but on April 29, 2003, she left her daughter with Maria and Maria’s children.  A.B. is the
oldest of Maria’s children.  Graciela arrived home around 2 a.m. and knocked on Maria’s door to
pick up her daughter.  Maria was not home, but A.B. answered the door.
            As Graciela bathed A.A. the next morning, the child made an outcry statement.  The specific
details of the outcry were not disclosed at trial.  Graciela notified authorities on May 3, 2003.  She
waited a few days since she felt guilty about having left her daughter with Maria’s children.  Graciela
talked to Maria, who told her and A.A. not to tell anyone about the incident.  
            El Paso Police Department Detective Oscar Morales interviewed A.A. on May 8, 2003. 
Officer Morales believed the child could distinguish between telling the truth and a lie and that she
knew the moral consequences of telling a lie.  Morales characterized her as articulate and able to
recall the events due to the short time period between the incident and the interview.  A.A. was also
able to identify her private parts and to distinguish between a good and bad touch.  
            A.A. was six at the time of trial and five at the time of the incident.  She testified that she
knew the difference between the truth and a lie and she promised to tell the truth.  She remembered
staying with A.B. and his two brothers.  When A.A. was asleep in Maria’s bed, A.B. touched her. 
A.B. made sure the covers hid his hands.  A.A.’s underwear was pulled down.  She explained what
private parts were, characterized them as the “front” and the “bottom,” and pointed to them for the
court.  She also knew the difference between “inside” and “outside.”  Using his fingers, A.B. touched
her inside both areas.  
            The juvenile court found that A.B. had engaged in delinquent conduct under both counts of
the State’s petition.  He was placed on probation under the Serious Habitual Offender
Comprehensive Action Program.  
ENGAGEMENT IN DELINQUENT CONDUCT
            In Points of Error Nos. One and Two, A.B. challenges the legal and factual sufficiency of the
evidence to support a finding of delinquent conduct.  
Standard of Review
            A jury finding that a juvenile engaged in delinquent conduct violates due process of law
unless supported by sufficient evidence to justify a rational trier of fact to find guilt beyond a
reasonable doubt.  In the Matter of Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d
368 (1970), Alvarado v. State, 912 S.W.2d 199, 206-07 (Tex.Crim.App. 1995); In the Matter of A.S.,
954 S.W.2d 855, 858 (Tex.App.--El Paso 1997, no writ).  Under this standard, we must review all
the evidence, both State and defense, in the light most favorable to the verdict to determine whether
any rational trier of fact could have found the essential elements of the offense beyond a reasonable
doubt.  In the Matter of A.S., 954 S.W.2d at 858; Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct.
2781, 2789, 61 L.Ed.2d 560 (1979); Alvarado, 912 S.W.2d at 207.
            In reviewing factual sufficiency of the evidence, we are to view all the evidence in a neutral
light, favoring neither party.  Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v.
State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996).  Evidence is factually insufficient if it is so weak
that it would be clearly wrong and manifestly unjust to allow the verdict to stand, or the finding of
guilt is against the great weight and preponderance of the available evidence.  Johnson, 23 S.W.3d
at 11.  Therefore, the question we must consider in conducting a factual sufficiency review is
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 fact finder’s determination,
or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  See
id.  In performing this review, we are to give due deference to the fact finder’s determinations.  See
id. at 8-9; Clewis, 922 S.W.2d at 136.  The fact finder is the judge of the credibility of the witnesses
and may “believe all, some, or none of the testimony.”  Chambers v. State, 805 S.W.2d 459, 461
(Tex.Crim.App. 1991).  Consequently, we may find the evidence factually insufficient only where
necessary to prevent a manifest injustice from occurring.  See Johnson, 23 S.W.3d at 12; Cain v.
State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).
Aggravated Sexual Assault
            The offense of aggravated sexual assault is committed when one intentionally or knowingly
causes the penetration of the anus or sexual organ of a child under the age of fourteen by any means. 
Tex.Pen.Code Ann. § 22.021 (Vernon Supp. 2004-05).  A conviction for aggravated sexual assault
“is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim
informed any person, other than the defendant, of the alleged offense within one year after the date
on which the offense is alleged to have occurred.”  Tex.Code Crim.Proc.Ann. art. 38.07(a)
(Vernon Pamphlet 2004-2005).  This requirement does not apply if the victim is seventeen years of
age or younger.  Id. at art. 38.07(b)(1).  The testimony of a child victim alone is sufficient to support
a conviction for aggravated sexual assault or indecency with a child.  Perez v. State, 113 S.W.3d 819,
838 (Tex.App.--Austin 2003, pet. ref’d).
            A child may lack the technical knowledge to accurately describe parts of his or her body. 
Clark v. State, 558 S.W.2d 887, 889 (Tex.Crim.App. 1977).  Where the child has sufficiently
communicated to the trier of fact that the touching occurred to a part of the body within the definition
of Section 21.01, the evidence will be sufficient to support a conviction regardless of the
unsophisticated language that the child uses.  Id.  Sexual contact means any touching of the anus,
breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire
of any person.  Tex.Pen.Code Ann. § 21.01(2)(Vernon 2003). 
            In a prosecution for sexual assault, penetration may be proved by circumstantial evidence. 
Pace v. State, 986 S.W.2d 740, 749 (Tex.App.--El Paso 1999, pet. ref’d), citing Nilsson v. State, 477
S.W.2d 592, 595 (Tex.Crim.App. 1972); Everage v. State, 848 S.W.2d 357, 359 (Tex.App.--Austin
1993, no pet.).  Proof of the slightest penetration is sufficient.  Nilsson, 477 S.W.2d at 595. 
Analysis
            Appellant first claims that the evidence was legally insufficient to prove the element of
penetration beyond a reasonable doubt.  He admits that an aggravated sexual assault conviction is
supportable on the uncorroborated testimony of the sexual assault victim.  See Tex.Code
Crim.Proc.Ann. art. 38.07.  But he questions whether the statutory language means that other
evidence is irrelevant or dispensable.  He complains that cases analyzed under Article 38.07 had a
matrix of physical, medical, and circumstantial evidence while the case at bar has only the
undeveloped and vague testimony of a child.  In other words, he argues that A.A.’s testimony failed
to dispel reasonable doubt since the record did not indicate where the child was pointing or what she
meant by the terms “front,” “bottom,” or “inside.”  He suggests that the State could have shown her
anatomical dolls or pictures to determine where she was pointing and whether the touching was
actually inside her genitals or anus.  Because it failed to do so, Appellant claims the State failed to
prove the element of penetration beyond a reasonable doubt.  We disagree.
            Viewing the evidence in a light most favorable to the verdict, we conclude that a rational trier
of fact could have found all the essential elements of aggravated sexual assault through penetration
of the sexual organ and anus solely on the basis of A.A.’s uncorroborated testimony.  The child
testified that while she was asleep in Maria’s bed, A.B. touched her.  She characterized her private
parts as the “front” and the “bottom” and she pointed to them.  She explained that A.B. touched her
“front” and in the “bottom” using his fingers.  She also understood the difference between “inside”
and “outside.”  Because A.A. sufficiently communicated to the court that A.B. used his fingers to
penetrate her genitals and anus, the evidence is legally sufficient to sustain the court’s finding of
delinquent conduct under both counts of the State’s petition.  Point of Error No. One is overruled.
            Appellant argues in Point of Error No. Two that the evidence is factually insufficient to prove
the element of penetration beyond a reasonable doubt.  Specifically, he argues that there was no
physical evidence to show penetration.  Viewing the evidence in a neutral light, we cannot conclude
that the evidence of penetration is so weak as to be clearly wrong and manifestly unjust or against
the great weight the evidence.  Penetration may be proved by circumstantial evidence.  Pace, 986
S.W.2d at 749.  Proof of the slightest penetration is sufficient.  Nilsson, 477 S.W.2d at 595.  A.A.’s
testimony that A.B. penetrated her genitals and anus with his finger is sufficient evidence of
penetration without testimony from her mother or a medical professional detailing any physical
evidence of penetration.
            We are to give due deference to the fact finder’s determinations since the fact finder is the
judge of the credibility of the witnesses and may “believe all, some, or none of the testimony.” 
Chambers, 805 S.W.2d at 461.  The court obviously found that A.A. to be a credible witness and
believed her testimony regarding the sexual assault.  Because the evidence is factually sufficient to
sustain the court’s finding of delinquent conduct under both counts of the State’s petition, we
overrule Point of Error No. Two and affirm the judgment of the trial court

February 3, 2005                                                         
                                                                                    ANN CRAWFORD McCLURE, Justice
Before Panel No. 2
Barajas, C.J., McClure, and Chew, JJ.
