Affirmed and Memorandum Opinion filed October 15, 2015.




                                              In The

                           Fourteenth Court of Appeals

                                      NO. 14-14-00688-CR

                                 GARY MARTINS, Appellant

                                                 V.
                             THE STATE OF TEXAS, Appellee

                          On Appeal from the 176th District Court
                                  Harris County, Texas
                              Trial Court Cause No. 1371501

                        MEMORANDUM OPINION
      A jury convicted appellant Gary Martins of aggravated sexual assault of a child.1
The jury sentenced appellant to confinement for thirteen years in the Institutional
Division of the Texas Department of Criminal Justice. In one issue, appellant argues
that the evidence to support his conviction is legally insufficient. We affirm.

                             Factual and Procedural Background

      On September 7, 2012, appellant’s wife, Jenetta Martins, arrived home to a quiet
and dark townhouse. Jenetta testified that when she walked towards her bedroom, she

      1
          Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (West 2011).
felt “sick, like something was wrong.” The home was dark and the television was turned
off. This was unusual because appellant routinely fell asleep on the couch while
watching television. Earlier that night, Jenetta had placed J.S., her eight-year-old niece,
in the master bedroom to sleep. When Jenetta walked into the bedroom, she saw
appellant and J.S. lying next to each other in the bed. Both appeared to be asleep.
Jenetta woke J.S. and carried her to the living room, where she noticed that her shorts
were folded down in the back. Jenetta asked J.S. if appellant had touched her. J.S. said
no. Jenetta asked J.S. again if appellant had touched her. J.S. asked if Jenetta would be
mad at her and whether Jenetta would tell appellant what J.S. said next.             Jenetta
responded that she would not. J.S. then told Jenetta that appellant had touched her. J.S.
indicated that appellant rubbed her buttocks and then demonstrated with her finger how
appellant touched her between her legs and moved his finger back and forth.

      J.S. testified at trial that appellant placed his hand in her underwear, put his finger
in her “pee side,” and moved it back and forth. J.S. also testified that she told appellant
to stop several times because he was hurting her, but that he did not listen to her
“because he was sleeping and couldn’t stop when [she] told him to.” J.S. demonstrated
for the jury where appellant had touched her on a doll. The location that J.S. indicated
corresponded with the female sexual organ.

      After J.S. made her outcry to Jenetta, she was taken to the hospital for an exam by
a forensic nurse. The nurse, Sandra Sanchez, testified at trial that, during the exam, she
found a 0.4 centimeter by 0.2 centimeter bruise on J.S.’s hymen. A photo depicting the
bruise was entered into evidence. As part of the exam, J.S’s underwear was collected as
evidence and tested by personnel at the Harris County Institute of Forensic Science. A
stain on the underwear returned a presumptive positive for blood. Male DNA detected
inside the underwear was consistent with appellant’s DNA profile. Two weeks after the
assault, Lisa Holcomb, a forensic interviewer at the Children’s Assessment Center in


                                             2
Houston, interviewed J.S. Holcomb testified at trial that J.S. disclosed the same abuse
to her during the interview.

      The jury convicted appellant of aggravated sexual assault of a child. Appellant’s
sole argument on appeal is that the evidence presented at trial was insufficient to
support his conviction because the State failed to prove that he acted intentionally or
knowingly in penetrating the female sexual organ of J.S.

                                         Analysis

      In reviewing the legal sufficiency of the evidence, we must consider “all of the
evidence in the light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could have found
the essential elements of the crime beyond a reasonable doubt.” Gear v. State, 340
S.W.3d 743, 746 (Tex. Crim. App. 2011). A person commits aggravated sexual assault
if he intentionally or knowingly causes the penetration of the sexual organ of a child by
any means. Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (West 2011). Appellant does
not argue that he did not penetrate the female sexual organ of J.S. Rather, he asserts
that the evidence presented at trial was insufficient to show that he acted intentionally or
knowingly. A person acts intentionally “when it is his conscious objective or desire to
engage in the conduct or cause the result.” Tex. Penal Code Ann. § 6.03(a) (West
2011). A person acts knowingly “when he is aware that his conduct is reasonably
certain to cause the result.” Id. § 6.03(b). Appellant claims that no rational jury could
have found that he acted with either culpable mental state because the evidence at trial
shows that he was asleep at the time that he penetrated the female sexual organ of J.S.

      J.S. testified that she repeatedly told appellant to stop touching her, but that he
continued without regard to her numerous protests. J.S. testified that she believed that
appellant was unable to stop because he was asleep. Jenetta testified that appellant
appeared to be sleeping when she entered the bedroom to find appellant and J.S. in bed

                                             3
together after the assault occurred. Appellant argues that these bits of testimony, taken
together, render it impossible for a rational jury to conclude that he acted with the
requisite state of mind for aggravated sexual assault.

      The task of evaluating testimony and drawing reasonable inferences from the
facts belongs exclusively to the jury. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
We do not substitute our judgment for the jury’s when reviewing the evidentiary
sufficiency of the verdict that they rendered. Johnson v. State, 421 S.W.3d 893, 896
(Tex. App.—Houston [14th Dist.] 2014, no pet.). We only determine whether any
rational trier of fact could have reached the same conclusion after hearing the evidence
before them. Gear, 340 S.W.3d at 746.

      The jury weighed all of the evidence, forensic and non-forensic. From the
evidence, the jury reasonably could have inferred that, in spite of the testimony of J.S. to
the contrary, appellant was not actually asleep and acted either intentionally or
knowingly in penetrating the female sexual organ of J.S. J.S. was eight years old when
appellant assaulted her and ten years old when she testified at trial. The forensic
examiner testified that J.S. also appeared to be developmentally delayed. Both age and
impaired development could have affected her ability to understand whether appellant
was really unable to control his actions or whether he was just feigning sleep. J.S. slept
over at appellant’s home often and had a close relationship with him and his wife. It is
rational to infer that such a child would have honestly believed her own mistaken
testimony and trusted that appellant was not acting intentionally to hurt her and was
instead ignoring her protests because he was asleep. See Whatley v. State, 445 S.W.3d
159, 166–67 (Tex. Crim. App. 2014) (aggravated sexual assault conviction upheld
despite child’s forensic interview in which she seemed convinced that appellant, her
stepfather, was asleep when he touched her).

      The jury also considered forensic evidence that could have rationally supported a

                                             4
finding of intentional or knowing action. J.S. suffered an injury to her hymen—one
which the forensic nurse testified was uncommonly severe for the digital penetration
that J.S. reported being victim to. An injury so deep within the female sexual organ
could have given rise to a reasonable inference of intentional penetration by the
appellant. Similarly, a rational jury could have reasonably inferred that appellant’s
actions were intentional or knowing after hearing that male DNA matching appellant’s
genetic profile was found inside the underwear of J.S.

      Considering all of the evidence in the light most favorable to the verdict, we
conclude that a rational trier of fact could have convicted appellant on the evidence
presented to the jury. Therefore, the evidence is legally sufficient to support appellant’s
conviction for aggravated sexual assault of a child. Id. at 167. Having overruled
appellant’s sole issue, we affirm the trial court’s judgment.




                                       /s/       Marc W. Brown
                                                 Justice




Panel consists of Justices Boyce, Busby, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).




                                             5
