                                MEMORANDUM OPINION
                                        No. 04-10-00129-CR

                                       Jose Roman CORTEZ,
                                             Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                   From the 25th Judicial District Court, Guadalupe County, Texas
                                    Trial Court No. 08-1316-CR
                           Honorable Dwight E. Peschel, Judge Presiding

Opinion by:      Steven C. Hilbig, Justice

Sitting:         Phylis J. Speedlin, Justice
                 Rebecca Simmons, Justice
                 Steven C. Hilbig, Justice

Delivered and Filed: June 15, 2011

AFFIRMED IN PART; REVERSED AND RENDERED IN PART

           Jose Roman Cortez was convicted of one count of aggravated sexual assault and two

counts of sexual assault involving a child victim. Cortez appeals, complaining the evidence is

insufficient to support the verdict and that charge error resulted in a non-unanimous verdict. We

affirm the judgment in part and reverse and render in part.
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                                                     BACKGROUND

           Cortez was married to the complainant’s grandmother.                          M.M. 1 testified that Cortez

engaged in sexual contact with her on three separate occasions when she was eight years old and

visiting the Cortez residence. M.M., who was ten at the time of trial, testified that during the

first incident, she was on a couch when Cortez touched her on her “butt” and then placed his

hand under her pants and touched her on her “private.” M.M. stated there was skin-to-skin

contact. Using a diagram, M.M. explained that her “private” was her genital area, and she

referred to the outer part of her body on either side of the vaginal opening as “cheeks.” M.M.

stated that Cortez did not touch her “cheeks” during the first incident but touched only the

“outside” of her “private.” The second incident occurred less than a week after the first, and

took place again in the living room at the Cortez residence. M.M. told the jury Cortez threw a

sock on the floor and when M.M. bent over to retrieve it, Cortez touched her on her “butt”.

Cortez next took his pants off and exposed his penis. Cortez then placed his hands under her

pants and touched her “between the cheeks.” M.M. stated she felt him touch her “on the inside.”

M.M. also told the jury that Cortez pulled down her pants and placed his mouth on her “private.”

           M.M. testified the third incident took place about two days later and began in the garage

of the Cortez residence. M.M. fell or tripped and Cortez went to help her. While doing so, he

touched her on her “butt” then unbuttoned her pants and touched the “cheeks” of her “private.”

Both went into the residence where Cortez placed his mouth or her “private” while she lay on the

floor in a hallway. M.M. told the jury Cortez “licked” her “private” and used his tongue to go

“inside” her.




1
    Given the nature of the offense, we will refer to the complainant by her initials.

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          During cross-examination, M.M. asserted that Cortez also put his “private” where she

“peed.” However, she later admitted that this never occurred, explaining that she got confused. 2

She also admitted that she told a caseworker only about the “sock incident” and told the

caseworker Cortez had touched her over her clothes rather than under her pants. M.M. also

acknowledged that she told the caseworker only about two incidents of sexual contact with

Cortez.

          Noella Hill, a sexual assault nurse examiner, testified she performed an examination of

M.M. Part of the examination included taking a statement from M.M. concerning the abuse.

Her report was admitted into evidence and the statement was read to the jury. In her statement to

Hill, M.M. stated, among other things, that her mother’s boyfriend had touched and kissed her

“on her private,” that he had “put his fingers in my private,” and “put his tongue in my private.”

She then asserted Cortez “did the same thing. He touched me and kissed me on the private.”

          Cortez testified and denied improperly touching M.M.. Cortez also told police in a

written statement that M.M. had been sitting on a couch and displaying her “private parts” by

opening and closing her legs. Cortez stated he told her to stop and she responded by pointing to

her genitals and saying he could touch her “there.” Cortez asserted that he told M.M. “no” and

then told his wife (M.M.’s grandmother) what had occurred. Cortez told police his wife told

M.M.’s mother about the incident, but the mother took no action.

          The jury returned guilty verdicts on three of the four counts in the indictment. The trial

court imposed a thirty-five year sentence on each count and ordered them to run concurrently.




2
 M.M. was also being sexually abused during this time period by her mother’s boyfriend. She explained that the
boyfriend had used his penis to penetrate her “private.”

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                                SUFFICIENCY OF THE EVIDENCE

                                       Standard of Review

       After Cortez filed his brief raising both factual and legal sufficiency points, the Court of

Criminal Appeals issued its opinion in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).

Although only four judges joined in the plurality opinion, a majority of the judges agreed it is no

longer appropriate to conduct a separate review for factual sufficiency in criminal appeals.

Brooks, 323 S.W.3d at 912; id. at 926 (J. Cochran concurring). Accordingly, we will review the

evidence to determine whether it is legally sufficient under the Jackson v. Virginia standard.

Brooks, 323 S.W.3d at 912. Under that standard, we review the evidence for legal sufficiency by

looking at all of the evidence 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. Prible v. State, 175 S.W.3d 724, 729-30 (Tex. Crim. App.), cert. denied, 546 U.S. 962

(2005). We resolve any inconsistencies in the testimony in favor of the verdict. Curry v. State,

30 S.W.3d 394, 406 (Tex. Crim. App. 2000). We defer to the jury’s determination of the weight

to be given to contradictory testimonial evidence because resolution of the conflict is often

determined by the jurors’ evaluation of the witnesses’ credibility and demeanor. Johnson v.

State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000).

                                           Discussion

       Count One of the indictment charged Cortez with aggravated sexual assault of a child

under the age of fourteen by penetrating M.M.’s female sexual organ with “defendant’s sexual

organ and/or defendant’s finger.” Count Three charged Cortez with sexual assault of a child who

he was prohibited from marrying by using his sexual organ and/or finger to penetrate the child’s

sexual organ. Cortez contends the evidence of penetration of M.M.’s sexual organ is too weak to



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support the jury’s guilty verdicts on both counts.       Cortez argues that much of the child’s

testimony was internally contradictory and differed from the accounts she provided other

witnesses. However, we defer to the jury’s evaluation of the credibility of a witness, and view

the evidence in the light most favorable to the jury’s verdict. M.M. testified that during the

second episode Cortez touched her “between the cheeks” and she felt him touch her “on the

inside.” This testimony and M.M.’s reference to a diagram is sufficient to support the jury’s

verdict as to the issue of penetration on one of the counts.

       The State concedes there is insufficient evidence of penetration to support the jury’s

verdict on both counts.       After reviewing the record, we agree.      Because the evidence

demonstrates only one instance of penetration, the convictions on both counts cannot stand.

Accordingly, we retain the conviction for the more serious offense and set aside the other

conviction. Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006). The more serious

offense is the one where the greater sentence was imposed. Id. at 337. When, as here, the same

sentence has been imposed in both counts, we may look at other criteria to determine which

offense is the most serious. Bigon v. State, 252 S.W.3d 360, 373 (Tex. Crim. App. 2008). We

hold the aggravated sexual assault under Count One to be the more serious offense. Aggravated

sexual assault is always a first-degree felony, whereas sexual assault is usually a second-degree

felony except when, as in the present case, the victim was a person whom the defendant was

prohibited from marrying. See and compare TEX. PENAL CODE § 22.021 (e) with TEX. PENAL

CODE § 22.011 (f). We therefore retain the conviction for aggravated sexual assault under Count

One and set aside the conviction for sexual assault under Count Three.

       Count Four of the indictment charged that, on or about August 26, 2007, Cortez sexually

assaulted M.M. by causing her sexual organ to contact his mouth. Cortez contends M.M.’s



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testimony about the facts surrounding the incidents when Cortez allegedly used his mouth to

contact M.M.’s sexual organ are too sparse to be worthy of belief. The issue of the witness’s

credibility is for the jury’s determination, and we view the evidence in the light most favorable to

the jury’s verdict. Prible, 175 S.W.3d at 729-30; Johnson, 23 S.W.3d at 9. M.M. testified that

Cortez placed his mouth on her “private” during the second and third incidents. 3 She described

how Cortez used his tongue to penetrate her “cheeks” during the third incident. A reasonable

jury could have relied on this testimony to find that Cortez caused M.M.’s sexual organ to

contact his mouth, as required for conviction under Count Four. We hold the evidence is legally

sufficient to support the jury’s verdicts on Counts One and Four.

                                              CHARGE ERROR

        Cortez next complains the trial court committed error in the jury charge because it

permitted the jury to return a non-unanimous verdict. Cortez contends that the indictment, which

alleged in Counts One and Three that he penetrated M.M.’s sexual organ by use of his “sexual

organ and/or defendant’s finger,” actually alleged four separate charges. Cortez argues that

because the verdict forms for these two counts recite that the jury found Cortez guilty “as

charged in the indictment,” some jurors may have found him guilty of penile penetration, while

others relied upon evidence of digital penetration. Further, although the charge contained a

general instruction on unanimity, the jury was not instructed it must agree on the manner of

penetration.    Cortez contends the failure to include such an instruction permitted a non-

unanimous verdict, and the error in the charge caused him egregious harm. See Almanza v.

State, 686 S.W.2d 157 (Tex. Crim. App. 1984).




3
 Cortez was found not guilty on Count Two of the indictment, which charged him with aggravated sexual assault by
causing M.M.’s sexual organ to contact his mouth on or about August 15, 2007.

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       A defendant is entitled to a unanimous verdict in felony cases. Ngo v. State, 175 S.W.3d

73, 745 (Tex. Crim. App. 2005). A non-unanimous verdict may result if the jury charge includes

separate acts constituting separate offenses in a single application paragraph and does not also

contain an instruction that the jury must agree on a single act for conviction. Id. at 744. The jury

is presumed to have followed instructions provided in the charge. Williams v. State, 937 S.W.2d

470, 490 (Tex. Crim. App. 1996).

       We conclude Cortez’s attack on the jury charge must fail. Although the indictment

alleged penetration of the complainant’s sexual organ by his sexual organ and/or his finger, the

trial court limited the jury’s consideration of penetration to only the use of the defendant’s finger

in the jury charge application paragraphs.       As the jury is presumed to have followed the

instructions in the charge, its guilty verdicts on each count of sexual assault or aggravated sexual

assault was based on digital penetration of M.M.’s sexual organ. There is nothing in the record

to support Cortez’s contention that the jury’s verdict could have been based in any part on penile

penetration. Because there was no charge error, Cortez did not suffer egregious harm.

                                           CONCLUSION

       The evidence is legally sufficient to support the conviction on Count Four of the

indictment and to support the conviction under either Count One or Count Three. However, as

the State concedes, there was evidence only of a single instance of penetration of M.M.’s sexual

organ. We hold the most serious offense is aggravated sexual assault and therefore set aside the

conviction for sexual assault under Count Three. We further hold there was no jury charge error

as the charge did not permit the jury to return a non-unanimous verdict.




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         The judgment of the trial court on Count One and Count Four is affirmed. The judgment

of the trial court on Count Three is reversed and a judgment of acquittal is rendered on that

count.


                                               Steven C. Hilbig, Justice


DO NOT PUBLISH




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