                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00148-CR
        ______________________________


         HORACIO GONZALES, Appellant

                         V.

         THE STATE OF TEXAS, Appellee




    On Appeal from the 2nd Judicial District Court
              Cherokee County, Texas
               Trial Court No. 17369




    Before Morriss, C.J., Carter and Moseley, JJ.
   Memorandum Opinion by Chief Justice Morriss
                                       MEMORANDUM OPINION

        Following a bench trial, Horacio Gonzales was convicted of aggravated sexual assault of

eight-year-old M.G. and was sentenced to thirty years‘ imprisonment.1 Gonzales alleges that he

did not validly waive his right to trial by jury and that the trial court‘s judgment was not supported

by legally sufficient evidence.2 We affirm the trial court‘s judgment, because (1) the lack of a

formal jury-trial waiver was not harmful and (2) sufficient evidence supported the trial court‘s

judgment.

(1)     The Lack of a Formal Jury-Trial Waiver Was Not Harmful

        Article 1.13 of the Texas Code of Criminal Procedure states:

        The defendant in a criminal prosecution for any offense other than a capital felony
        case in which the State notifies the court and the defendant that it will seek the
        death penalty shall have the right, upon entering a plea, to waive the right of trial by
        jury, conditioned, however, that such waiver must be made in person by the

1
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV‘T CODE ANN. § 73.001 (Vernon 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
2
 Gonzales also complains the evidence was factually insufficient to support his conviction. We have previously
explained that in Brooks v. State, 323 S.W.3d 893, 894–95, 912–13 (Tex. Crim. App. 2010),

        a plurality of the Texas Court of Criminal Appeals abolished the factual sufficiency review
        established by Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and its progeny. The
        plurality and the concurring judges agreed that the Jackson v. Virginia, 443 U.S. 307 (1979), legal
        sufficiency standard is the sole standard that a reviewing court should apply in determining whether
        the evidence is sufficient to support each element of a criminal offense that the State is required to
        prove beyond a reasonable doubt. Brooks, 323 S.W.3d at 894–95, 912–13. Since the Texas Court
        of Criminal Appeals has abolished factual sufficiency review, we need not address the defendant's
        challenge to the factual sufficiency of the evidence.

Louis v. State, 329 S.W.3d 260, 267 n.5 (Tex. App.––Texarkana 2010, pet. filed).

                                                          2
       defendant in writing in open court with the consent and approval of the court, and
       the attorney representing the State. The consent and approval by the court shall be
       entered of record on the minutes of the court, and the consent and approval of the
       attorney representing the State shall be in writing, signed by him, and filed in the
       papers of the cause before the defendant enters his plea.

TEX. CODE CRIM. PROC. ANN. art. 1.13(a) (Vernon 2005). Both parties agree there was a failure

to comply with this rule. Specifically, there was no written waiver of trial by jury, no indication

of such a waiver in open court, and no record of consent and approval by the trial court or by the

State. Thus, the parties have assumed that Article 1.13(a) was violated, and the issue before us is

whether Gonzales was harmed.

       Gonzales contends that denial of his right to a jury trial is not subject to a harm analysis.

However, ―the violation of a mandatory statute does not, by itself, call for the reversal of a

conviction.‖ Smith v. State, 223 S.W.3d 690, 695 (Tex. App.—Texarkana 2007, no pet.) (citing

Ford v. State, 73 S.W.3d 923, 925 (Tex. Crim. App. 2002)). Because Gonzales ―alleges merely

that there was no written jury waiver, and does not allege that there was no jury waiver at all, he

alleges statutory error, not constitutional error. We therefore analyze harm under Appellate Rule

44.2(b).‖ Johnson v. State, 72 S.W.3d 346, 348 (Tex. Crim. App. 2002); Jackson v. State, 76

S.W.3d 798, 801 (Tex. App.—Corpus Christi 2002, no pet.) (ordinary harm analysis applied to

Article 1.13 violations per Johnson); Whitmire v. State, 33 S.W.3d 330, 333–34 (Tex.

App.—Eastland 2000, no pet.) (same); Loveless v. State, 21 S.W.3d 582, 584 (Tex. App.—Dallas

2000, pet. ref‘d) (recognizing overruling of Meek v. State, 851 S.W.2d 868, 871 (Tex. Crim. App.



                                                 3
1993)). If the error ―does not affect substantial rights,‖ then it ―must be disregarded.‖ TEX. R.

APP. P. 44.2(b); Johnson, 72 S.W.3d at 348.

        To assess harm resulting from this nonconstitutional error, we examine whether the

purpose of Article 1.13 was thwarted by the error. Smith, 223 S.W.3d at 695. ―[T]he purpose of

this statute is to ensure that a defendant is fully aware of his right to have a jury.‖ Id. at 696.

Thus, to determine whether the Article 1.13 violation was harmful, we ―ascertain whether

[Gonzales] understood his right to trial by jury.‖ Johnson, 72 S.W.3d at 349; see Smith, 223

S.W.3d at 695. If the record demonstrates he was ―fully aware of his right to a jury trial,‖ no harm

can be shown. Smith, 223 S.W.3d at 696.

        Here, a record developed during the motion for new trial led the trial court to conclude ―the

defendant testified that his trial counsel advised him that he had a right to a jury trial, that he knew

he was going to be tried before the Court, and that he did intend to waive his right to a jury trial.‖

The following questioning of Gonzales supports the trial court‘s conclusions:

              Q.     During that hour and a half meeting [with your attorney,
        Mr. Mayhan,] you discussed the fact that this was going to be a bench trial, correct?

                A.      Yes.

                Q.     And this was something you had discussed with Mr. Mayhan in the
        past, correct?

                A.      We discussed it.

                Q.        And Mr. Mayhan told you on more than one occasion of your right
        to a jury trial, correct?


                                                   4
                 A.      Yes.

                 ....

                Q.      So you knew that when you came here you were not going to be
        getting a jury trial?

                 A.      Correct.

                 Q.      That was your intention, correct?

                 A.      Correct.

                 Q.      So you intended to waive your right to a jury, correct?

              A.      I didn‘t intend it to waive my rights. I mean, he offered me
        something else, that‘s the reason we went with the judge.

                 Q.      He offered you something else what do you mean?

                 A.      Probation.3

               Q.     Okay. Because your hope was that you would get probation you
        decided to waive your right to a jury trial and go to the Judge?

                 A.      Right.

                 Q.      So you did make a conscious decision to waive your right to a jury
        trial?

        A.       Yes.



3
 Gonzales was never eligible for judge-ordered or jury-recommended community supervision for aggravated sexual
assault of a child. TEX. CODE CRIM. PROC. ANN. art. 42.12 §§ 3g(a)(1)(E), 4(d)(5) (Vernon Supp. 2010). The
question of whether Gonzales‘ decision to proceed with a bench trial was based on inadequate legal advice is not
before us.

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The trial was originally set for trial by jury. Mayhan believed Gonzales understood his right to

trial by jury, that he ―talked to him about it on a number of occasions,‖ and that Gonzales ―did say

he wanted a trial to the Court or that was his choice after I advised him of what his rights were.‖4




4
    The State contends that an oral waiver of jury trial occurred, but was not recorded, citing the following:

                     Q.      In this courtroom the morning of this trial do you recall there being a brief recess
            and myself rounded the corner of Defense Counsel table at one point when I was over there by you,
            the Judge made the statement, ―I assume this is a waiver of a jury trial.‖ Do you recall that?

                     A.       I don‘t recall that.

                     ....

                     Q.       Do you recall that your attorney responding [sic], ―Yes, sir?‖

                     A.       I think so.

                     Q.       Do you recall the Judge looking at you and saying ―Is this correct?‖

                     A.       I think so.

                     Q.       And do you recall saying, ―Yes, sir?‖

                     A.       I think so.

                     Q.       We were here in open court at that time, correct?

                     A.       Uh-huh.

                    Q.      So you acknowledge that you made a statement in open court to the Judge that you
            were waiving your right to a jury trial, correct?

                     A.       No.

                     Q.      Let me go back. You just said you recall telling the Judge, ―Yes, sir,‖ in response
            to his question?

                     A.       I guess I didn‘t understand that question at that time.


                                                              6
            Because Gonzales was fully aware of his right to trial by jury, the Article 1.13 violation did

not harm him.

(2)         Sufficient Evidence Supported the Trial Court’s Judgment

            We turn to the question of the sufficiency of the evidence. The indictment in this case

alleged that Gonzales penetrated M.G.‘s female sexual organ with his finger.                    Under a

hypothetically correct jury charge, the State was required to prove that Gonzales intentionally5 or

knowingly ―caus[ed] the penetration of the . . . sexual organ of a child by any means,‖ and ―the

victim is younger than 14 years of age.‖6 TEX. PENAL CODE ANN. § 22.021(a)(1)(B), (2)(B)

(Vernon Supp. 2010).

            In evaluating evidentiary sufficiency, we review all the evidence in the light most

favorable to the verdict to determine whether any rational fact-finder could have found the

essential elements of aggravated sexual assault of a child beyond a reasonable doubt. Brooks, 323

S.W.3d at 912 (citing Jackson, 443 U.S. at 319); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex.

App.—Texarkana 2010, pet. ref‘d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007)). Our rigorous sufficiency review focuses on the quality of the evidence presented.

Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We examine evidentiary sufficiency under

the direction of the Brooks opinion, while giving deference to the responsibility of the fact-finder


5
 Intent to commit sexual assault can be inferred from acts done. Cook v. State, 99 S.W.3d 310, 316 (Tex.
App.––Eastland 2003, no pet.).
6
    M.G.‘s age is not in dispute.

                                                      7
―to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.‖ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)

(citing Jackson, 443 U.S. at 318–19).

          Sufficiency of the evidence is measured by the elements of the offense as defined by a

hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997);

see also Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008); Vega v. State, 267 S.W.3d

912, 916 (Tex. Crim. App. 2008). Stating that ―[m]ere contact with the outside of an object does

not amount to penetration,‖ Gonzales challenges only the element of penetration.

          M.G. testified that, the last time she visited Gonzales, she ―went to bed with him.‖ She

said, ―I was sleeping and I woke up and he was touching me‖ ―[o]n my private,‖ under her clothes.

The State cites to the following transcript to establish penetration:

                 Q.      Did his hand or his fingers go inside your private at all or just on the
          outside or kind of a little bit inside or what was that?

                 A.      Like when you wipe.

                 Q.      Like when you wipe. The part of your body that‘s kind of damp?

                 A.      Yes, ma‘am.

The State also refers to testimony by sexual assault nurse examiner Valerie Murphy. Murphy

stated:

          I asked [M.G.] why she was there and she said, ―He touched the inside of my bug.‖
          And I asked her what her bug was. And then I actually pulled out a female
          diagram of the vagina and had her point to where she was touched, and explained to


                                                    8
       her what that -- what that diagram was, what it looked like, and had her explain to
       me where she was touched.

The diagram indicated that M.G. pointed to the female sexual organ while stating ―in here–not in

the hole.‖ Murphy believed M.G. was pointing to ―the clitoris or the clitoris hood.‖ Murphy‘s

report records M.G. stating, ―[H]e just touched on the inside.‖

       ―The testimony of a child sexual abuse victim alone is sufficient to support a conviction for

aggravated sexual assault.‖ Ozuna v. State, 199 S.W.3d 601, 606 (Tex. App.—Corpus Christi

2006, no pet.) (citing TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon 2005); Garcia v. State, 563

S.W.2d 925, 928 (Tex. Crim. App. 1978)). When a child has sufficiently communicated that the

touching occurred to a part of the body within the definition of the statute, the evidence will be

sufficient to support a conviction regardless of the unsophisticated language the child uses.

Gallegos v. State, 918 S.W.2d 50, 54 (Tex. App.—Corpus Christi 1996, pet. ref‘d).

       ―Female sexual organ,‖ as used by the statute, is a more inclusive term than ―vagina‖ and

refers to the entire female genitalia, including both vagina and the vulva. Aylor v. State, 727

S.W.2d 727, 729–30 (Tex. App.—Austin 1987, pet. ref‘d). ―[T]actile contact beneath the fold of

complainant[‘]s external genitalia amounts to penetration within the meaning of the Aggravated

Sexual Assault statute, since vaginal penetration is not required, but only penetration of the

‗female sexual organ.‘‖ Steadman v. State, 280 S.W.3d 242, 247–48 (Tex. Crim. App. 2009)

(quoting Vernon v. State, 841 S.W.2d 407, 409–10 (Tex. Crim. App. 1992)). The slightest

penetration of the female sexual organ is sufficient to prove penetration. Vernon, 841 S.W.2d at


                                                9
409. Penetration occurs so long as contact with the female sexual organ could reasonably be

regarded by an ordinary person as more intrusive than contact with the outer labia. Id. Proof of

penetration may be circumstantial.         Id.; Belt v. State, 227 S.W.3d 339, 342 (Tex.

App.—Texarkana 2007, no pet.).

       M.G. testified that Gonzales touched her private under her clothes on the part of the body

that is damp, and ―[l]ike when you wipe.‖ M.G. told Murphy that Gonzales had ―touched the

inside of my bug‖ and ―in‖ her female sexual organ. When M.G. was asked where she was

touched, Murphy believed M.G. pointed to ―the clitoris or the clitoris hood.‖

       We conclude that a rational fact-finder could have found beyond a reasonable doubt that

Gonzales caused the penetration of M.G.‘s female sexual organ. Gonzales‘ only evidentiary

sufficiency challenge, the element of penetration, is overruled.

       We affirm the trial court‘s judgment.




                                               Josh R. Morriss, III
                                               Chief Justice

Date Submitted:        March 17, 2011
Date Decided:          March 18, 2011

Do Not Publish




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