                                  NO. 07-08-0510-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                               SEPTEMBER 1, 2009
                         ______________________________

                                  RAY HERNANDEZ,

                                                              Appellant

                                            v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2007-415,557; HON. CECIL G. PURYEAR, PRESIDING
                      _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Ray Hernandez was convicted of aggravated sexual assault with a deadly weapon

finding and sentenced to life imprisonment. He appeals that conviction by contending the

evidence is factually insufficient to support it. We disagree and affirm the judgment.

      The standard by which we review the factual sufficiency of the evidence is

discussed in Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006) to which we refer

the parties. Furthermore, and given the allegations in the indictment, the State was
required to prove that appellant intentionally and knowingly caused the penetration of the

female sexual organ of the victim by an unknown object without her consent and that he

compelled her to submit or participate by physical force or violence while using or exhibiting

a deadly weapon, i.e. a knife. See TEX . PENAL CODE ANN . §22.021(a)(1)(A)(i) & (2)(A)(iv)

(Vernon Supp. 2008).

        As appellant points out, he was convicted primarily on the testimony of the alleged

victim, his live-in girlfriend. She testified that appellant became angry, severely beat her,

held a knife to her throat, and then penetrated her vaginally with an unknown object,

possibly a curling iron. Though complaining about the factual, as opposed to legal,

sufficiency of the evidence, appellant seeks acquittal.1 He believes himself entitled to

same because the evidence of guilt generally came from one witness (the victim) and the

officers purportedly conducted a poor investigation which could have resulted in the loss

or contamination of evidence which could possibly have been exculpatory.2 We overrule

the issue.

        A conviction for aggravated sexual assault may be sustained on the uncorroborated

testimony of the victim alone. See TEX . CODE CRIM . PROC . ANN . art. 38.07(a) (Vernon

2005); Aleman v. State, 795 S.W.2d 332, 335 (Tex. App.–Amarillo 1990, no pet.).

Moreover, while the officers never identified the actual devices or weapons used by

appellant to assault the victim, it was not necessary that they be offered into evidence to

secure conviction. Aleman v. State, 795 S.W.2d at 335.

        1
         Appellant challenges only the factual sufficiency of the evidence for which the rem edy is reversal and
rem and for a new trial. Grotti v. State, 273 S.W .3d 273, 279-80 (Tex. Crim . App. 2008).

        2
         He also asserts that the officers were negligent in not entering his house to prevent him from
destroying or secreting potentially inculpatory evidence.

                                                       2
       As for the purported inadequacies in the investigation, they encompassed its

thoroughness and tenor. Included therein was the officers’ failure to investigate appellant’s

explanation for having blood on his hands, their failure to conduct DNA testing on a curling

iron found at the scene, their failure to secure the crime site, and their decision to move the

victim’s bloody clothing from one room to another. So too did appellant decry the lack of

information imparted to medical personnel when conducting their examinations of the

victim. While these may or may not be deficiencies, appellant did not cite us to any

evidence illustrating the actual loss of exculpatory evidence. Instead, he merely posited

that such evidence could have been lost or that the crime scene could have been

contaminated. And, these matters were before the jury.

       Also before the jury was evidence that the victim was hysterical when first

approached by officers, that the victim was severely beaten about her face, that the victim’s

pubic area was sore, that appellant had blood on his hands, that the victim’s bloody clothes

were found in the residence, that appellant did not immediately allow officers access to his

residence, that as the officers were required to remain outside they heard appellant moving

around inside, that a basket containing a curling iron had been moved, that it was not

possible to obtain DNA samples from a curling iron, and that appellant’s injuries were

inconsistent with appellant’s explanation about how they occurred.

       Simply put, the evidence admitted at trial was far from uncontradicted. And even

if it raised concerns about the thoroughness of the official investigation, it did not

necessarily nullify the victim’s testimony about the attack. Rather, it gave rise to questions

of fact for the jury to resolve. Furthermore, the jury was free to weigh issues of credibility

and disbelieve appellant’s explanation for the victim’s injuries. And, given the state of the

                                              3
evidence, we cannot say that resolving the disputes as it did was and is against the great

weight of the evidence. Nor is our confidence in the verdict undermined. In sum, the

evidence is factually sufficient to support the conviction.

       Accordingly, we affirm the judgment.



                                                  Brian Quinn
                                                  Chief Justice

Do not publish.




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