                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00280-CR


JUAN OLMOS                                                          APPELLANT

                                         V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1361532R

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                         MEMORANDUM OPINION1

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                                   I. Introduction

      Appellant Juan Olmos was charged, convicted and sentenced to life in

prison for aggravated sexual assault. In a single point, Olmos complains of the

sufficiency of the evidence to support his conviction. We affirm.



      1
       See Tex. R. App. P. 47.4.
                            II. Factual Background

      Olmos did not take the witness stand in his own defense. There were no

third-party witnesses to the assault. The details of the incident in question were

related to the jury by Alana Peters,2 the victim, who testified to the following

chronology of events from the evening of July 30, 2013.

      Peters worked the night-shift at the U.S. Postal Service and lived with her

mother in a three-bedroom home in southeast Fort Worth. On the day of the

incident, Peters was at home alone enjoying a day off from work and watching I

Love Lucy in her bedroom located in the back of the house.3

      At approximately 4:00 a.m., a young man4 wearing a black rosary necklace

and a gray “muscle shirt” pulled over his face, but otherwise naked from the waist

down, suddenly barged into her room.5 He carried with him a roll of duct tape



      2
       The complainant in this case used the pseudonym “Alana Peters.” See
Tex. Code. Crim. Proc. Ann. art. 57.02(b) (West Supp. 2014); 2nd Tex. App.
(Fort Worth) Loc. R. 7.
      3
       Her mother also worked the night shift, but it was not her day off.
      4
       Peters later identified this man as Olmos.
      5
       Peters testified that the television volume was loud in order to
compensate for the noise of a box fan she had turned on to help cool her
bedroom. Consequently, she did not hear Olmos enter the house and was not
sure how Olmos gained entry. She suspected he may have been able to come
in through the front door because the lock was flimsy. A Fort Worth Police
Department officer testified that he observed that the clasp on the front door and
the latch plate were “extremely loose,” and the crime scene investigator also
observed what appeared to be pry marks on the bolt area of the door frame.


                                         2
and a knife, and he warned Peters, “If you don’t cooperate, I will kill you. I don’t

want to kill you.”

      Olmos then pulled Peters to the side of the bed and began to duct-tape her

mouth shut as she pleaded with him, “Don’t do this. You’re so young.” Olmos

replied, “B--ch, I’m 42 years old,6 and . . . I just got back from the military. Just

shut the hell up and cooperate with me.” Olmos then covered Peters’ eyes with

duct tape, duct-taped her wrists behind her back, cut off her shirt with the knife,

and removed her shorts.

      After that, Peters heard Olmos leave her room and go outside.             She

testified that Olmos seemed “scatterbrained” and nervous, and it sounded to her

as though he was talking to someone outside. In his absence, Peters had just

managed to remove the duct tape from her wrists when he returned to her room.

Upon seeing what she had done, he said, “What the hell did I tell you? If you

don’t cooperate, I’m going to hurt you.” He then re-taped Peters’ hands—this

time in front of her body—and forced himself upon her, performing sexual

intercourse and oral sex on Peters while she was blind-folded and bound at the

wrists.

      Afterwards, Olmos instructed Peters that he wanted to take a shower with

her, so he forced her into the shower in her mother’s bathroom. Then, without




      6
          Olmos was 17 years old at the time.


                                          3
turning the water on, Olmos took Peters back out of the shower.              Peters

described Olmos’s behavior in this regard also as “scatterbrained.”

      At this point, he started asking her “where the guns were” and “where the

kilos of coke were,” and he claimed to be a member of the Zetas, a Mexican drug

cartel. Peters pleaded with Olmos to take their car, televisions, a diamond ring

she was wearing—anything he wanted, as long as he would leave—but Olmos

continued to question her about the guns and “coke.”

      Olmos then returned Peters into her mother’s bedroom, duct-taped her

ankles together, and forced her to perform oral sex on him. As he did so, he

placed the knife against her chest and warned her, “If you bite me, I will stab you.

I’ll kill you. You better not bite me.” After she performed oral sex on him, Olmos

cut the duct tape from around her ankles, lay down on the bed, and directed her

to get on top of him and have sex with him. Peters complied.

      While she was straddling Olmos, however, the duct tape covering Peters’

eyes came loose. She could see enough to determine that he was no longer

holding the knife because his hands were on her body. Peters used her hands to

feel the area of the bed around Olmos’s head and eventually felt the knife. She

grabbed it, aimed for his neck, and managed to leave a 6-inch scratch before the

handle broke off and the knife blade fell to the floor. Olmos rolled off to one side

of the bed, and Peters rolled to the other side. Olmos yelled, “You f---ing b--ch,

you tried to – You f---ing stabbed me.”




                                          4
      Both Olmos and Peters went for the blade and wrestled for it. Olmos

prevailed in the struggle and began stabbing at Peters. She used a nearby box

fan to block some of the jabs, but Olmos managed to thrust the knife into her

back, as well as into her right side, puncturing her lung.

      During the struggle, Olmos placed Peters into a choke hold, but she was

able to free herself momentarily. She seized the moment, along with his genitals,

digging her fingernails into them, as if to “rip them off.” As Olmos fell to the

ground, Peters escaped down the hallway. However, the blood dripping from her

wounds made the tile floor slick as she ran, causing Peters to slip and fall. This

delay provided Olmos the opportunity to catch up with her and grab her again

just as she had reached the front door.

      As Olmos pulled Peters back into the house, he yelled at her, “You f---ing

b--ch, you stabbed me in my neck.” Then he began wielding the knife at her

again. Peters sustained cuts and scratches to her forearm and wrists from her

attempts to stave off the repeated blows. As a wounded and bleeding Peters

continued to defend herself, she managed to reach the door once again. But, as

before, Olmos pulled her from it. This time, he stabbed her in the chest and in

the throat.   Struggling to breathe, Peters said, “I’m dying,” to which Olmos

responded, “Good. You shouldn’t have f---ing stabbed me, you f---ing b--ch.”

      Peters fell, hitting her head on the floor.     She remained there, playing

dead, in the hope that he would leave. He did, but not without delivering one last

abuse to her body. He spat on her face as he walked away.


                                          5
      Two and a half hours—what “seemed like an eternity” to Peters—had

elapsed before Olmos finally left the house. Naked, bloody, weak, and struggling

to breathe, Peters staggered to her neighbors’ house, where she knocked on the

door and rang the doorbell. After no one answered, she collapsed. Another

neighbor who was out walking his dog noticed her body lying on the porch and

called 9-1-1.7

      An ambulance arrived, and as Peters was being transported to the

hospital, she provided the paramedics with a description of her attacker.

Although she did not know him or anything about him, Peters said she had been

able to get a good look at Olmos while they were fighting, and she recognized

him from the neighborhood.

      Fort Worth Police Detective Drew Savage, who was assigned to

investigate the case, immediately began canvassing the neighborhood for

information using the general description Peters had provided, asking neighbors

whether they had seen or heard anything that evening. As a result of Detective

Savage’s efforts, Olmos was identified as a possible suspect, and two days later,

Detective Savage located him living in a house just down the street from Peters’

home. During the initial interview, Detective Savage observed injuries to Olmos’s

neck and hands and scratches on his body. Olmos was also wearing a black



      7
      At some point in the struggle, Peters had managed to grab Olmos’s grey
muscle shirt and she was still clutching it when the neighbor found her.


                                       6
rosary necklace that matched Peters’ description. Peters identified Olmos in a

six-person photo lineup presented to her on that same day.

      DNA testing revealed that Olmos’s DNA matched DNA found on the grey

muscle shirt. Olmos’s DNA also matched DNA from a “blob” of spit found on the

floor of Peters’ house, as well as from a vulvar swab collected from Peters while

she was in the hospital.

      Peters spent a week in the hospital recovering from a punctured lung, stab

wounds to her heart, diaphragm, liver, and throat, and defensive wounds on her

arms. Almost a year after the attack, Peters still felt pain when she laughed.

She could not yawn normally or lift items over her head.           She continued to

experience numbness in her abdomen any time she moved around for more than

twenty minutes. According to her doctors, the pain and the effects from the

injuries Olmos inflicted upon her were chronic issues that Peters, who was 29

years old at the time of trial, would have to endure for the remainder of her life.

                           III. Sufficiency of the Evidence

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014).




                                          7
      We measure the sufficiency of the evidence by the elements of the offense

as defined by the hypothetically correct jury charge for the case, not the charge

actually given. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); see Crabtree v.

State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential elements of

the crime are determined by state law.”). Such a charge is one that accurately

sets out the law, is authorized by the indictment, does not unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Byrd, 336 S.W.3d at 246. The law as authorized

by the indictment means the statutory elements of the charged offense as

modified by the factual details and legal theories contained in the charging

instrument.8 See Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App.

2013); see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014)

      8
       The indictment alleged, and therefore the State had to prove, that Olmos
on or about July 30, 2015, did

      [i]ntentionally or knowingly cause the penetration of the female
      sexual organ of Alana Peters (pseudonym) by inserting Defendant’s
      penis into Alana Peters (pseudonym) female sexual organ without
      the consent of Alana Peters (pseudonym) by compelling Alana
      Peters (pseudonym) to submit or participate by the use of physical
      force or violence or by threatening to use force or violence against
      Alana Peters (pseudonym) and Alana Peters (pseudonym) believed
      that the Defendant had the present ability to execute said threat,
      and the Defendant by acts or words placed Alana Peters
      (pseudonym) in fear that death or serious bodily injury would be
      imminently inflicted on Alana Peters (pseudonym) and the
      Defendant by acts or words occurring in the presence of Alana
      Peters (pseudonym) threatened to cause the death of or serious
      bodily injury to Alana Peters (pseudonym).

                                          8
(“When the State pleads a specific element of a penal offense that has statutory

alternatives for that element, the sufficiency of the evidence will be measured by

the element that was actually pleaded, and not any alternative statutory

elements.”).

      A person commits aggravated sexual assault

      (1) if the person:

                (A) intentionally or knowingly:

                         (i) causes the penetration of the anus or sexual
                   organ of another person by any means, without that
                   person’s consent;

                        (ii) causes the penetration of the mouth of another
                   person by the sexual organ of the actor, without that
                   person’s consent; or

                         (iii) causes the sexual organ of another person,
                   without that person’s consent, to contact or penetrate the
                   mouth, anus, or sexual organ of another person, including
                   the actor; [and]

                         ....

      (2) if:

                (A) the person:

                         (i) causes serious bodily injury or attempts to cause
                   the death of the victim or another person in the course of
                   the same criminal episode; [or]

                         ....

                          (iv) uses or exhibits a deadly weapon in the course
                   of the same criminal episode;

Tex. Penal Code Ann. §22.021(a)(1)(A)(i-iii), (a)(2)(A)(i), (iv) (West Supp. 2014).



                                             9
      A person acts intentionally “with respect to the nature of his conduct or to a

result of his conduct when it is his conscious objective or desire to engage in the

conduct or cause the result.” Id. §6.03(a) (West 2011). He acts knowingly “with

respect to the nature of his conduct or to circumstances surrounding his conduct

when he is aware of the nature of his conduct or that the circumstances exist” or

“with respect to a result of his conduct when he is aware that his conduct is

reasonably certain to cause the result.” Id. §6.03(b) (West 2011).

      “Intent is most often proven through circumstantial evidence surrounding

the crime.” Thompson v. State, 423 S.W.3d 475, 479 (Tex. App.—San Antonio

2014, no pet.).    In determining the sufficiency of the evidence to show an

appellant’s intent, and faced with a record that supports conflicting inferences, we

“must presume—even if it does not affirmatively appear in the record—that the

trier of fact resolved any such conflict in favor of the prosecution, and must defer

to that resolution.”   Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App.

1991).

      In a single point, Olmos contends that the State failed to prove that he had

the requisite culpable mental state, i.e., that he intentionally or knowingly inserted

his penis into her female sexual organ.9 Olmos argues that while Peters testified

to what Olmos did to her, “she offered no testimony that supported a rational

inference that [Olmos] acted knowingly or intentionally.”        Specifically, Olmos

      9
      Olmos does not challenge the sufficiency of the evidence to support the
remaining elements of the offense.


                                         10
characterizes Peters’ testimony as having “emphasized” that Olmos appeared

“‘scatterbrained’, unorganized, even confused.” Olmos argues that even giving

due deference to the jury to decide fact issues, the evidence did not establish

that he had committed these acts intentionally or knowingly.

      Peters never testified that Olmos appeared “confused.” Nor did she ever

utter the term “unorganized.”10 While Peters did use the term “scatterbrained”

twice during her testimony to describe Olmos’s conduct, cross-examination by

the defense provided context to the meaning she ascribed to that term:

           Q:    So from your perspective, in going through this ordeal, it
      almost sounds like this wasn’t even well thought out. Is that a fair
      statement?

           A.     I don’t know. It was kind of thought out, yes.

           Q:      Well, what did you mean when you said he was
      scatterbrained?

           A:     He just seemed—he just had—I could feel this nervous
      energy coming off of him, but I feel like it was thought out because
      he knew I was—obviously knew I was alone, and he had—it just
      seemed premeditated because he did have a roll of duct tape and a
      knife. But when he was in the house, he did seem very —

      10
       With regard to Olmos’s conduct that evening, the term “unorganized” was
used only once, by the defense attorney on cross-examination:

           Q: And you’ve made reference during your testimony to phrases like
      he was scatterbrained, he was kind of unorganized.

            A: Uh-huh.

            Q: He was kind of stupid, sounds like. Is that a fair statement.

            A: Yeah, that’s fair.


                                       11
           Q:      Agitated?

           A:      Uh-huh.

      Despite Peters’ testimony that Olmos may have been “scatterbrained” or

nervous, and certainly with the benefit of Peters’ clarification regarding her use of

that particular word, the record supports the jury’s finding that Olmos acted

intentionally and knowingly in sexually assaulting Peters. He planned it, as

evidenced by the supplies and weapon he brought with him. He used the duct

tape he brought with him to bind, blindfold, and gag her at various times

throughout the ordeal.     He used the knife to threaten her repeatedly with

violence, even death, if she failed to cooperate with him. When she did refuse to

cooperate and she fought back, he made good upon those threats, stabbing her

multiple times and inflicting potentially lethal wounds. He explicitly ordered her to

commit and submit to several sexual acts during the two-and-a-half-hour period

of assault. And, in his final act, he spat upon her face as he left her for dead.

      Based on this evidence, we hold that a rational trier of fact could have

found beyond a reasonable doubt that Olmos acted intentionally or knowingly

when he committed aggravated sexual assault, as charged in the indictment,

against Alana Peters. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs, 434

S.W.3d at 170. Therefore, we overrule Olmos’s sole point.




                                         12
                                IV. Conclusion

      Having overruled Olmos’s sole point, we affirm the trial court’s judgment.




                                                  /s/ Bonnie Sudderth
                                                  BONNIE SUDDERTH
                                                  JUSTICE


PANEL: GARDNER, WALKER, and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 1, 2015




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