                                  NO. 07-05-0352-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL C

                                AUGUST 28, 2006
                         ______________________________

                           RUDY P. VALLEJO, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2005-408528; HONORABLE CECIL G. PURYEAR, JUDGE
                       _______________________________


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


                              MEMORANDUM OPINION


      Appellant, Rudy Vallejo, appeals his conviction for the offense of aggravated sexual

assault of a child and life sentence. We affirm.


                                      Background


      Appellant worked at the City Water Department where he met Jennifer Moore. After

dating Moore for several years, appellant moved in with Moore and her daughter from a

previous marriage. In February of 2005, Moore observed an incident between appellant
with her daughter that caused Moore to become concerned about appellant’s interaction

with her daughter. Moore asked her stepfather to install a security camera above her

daughter’s sleeping area. Moore’s stepfather installed a system that would record the

sleeping area and send the video to Moore’s computer. Moore would then review the video

while appellant was at work. Soon after Moore began reviewing the video, Moore observed

a recording of appellant fondling Moore’s daughter while she slept. Moore reported the

incident to the police and surrendered her computer to the police as evidence. Based on

the digital recording, appellant was charged with two counts of indecency with a child and

one count of aggravated sexual assault of a child.


       At trial, appellant pled guilty to the two counts of indecency with a child, but pled not

guilty to the aggravated sexual assault of a child charge. During the trial, Moore, her

daughter, and a police officer testified to observing on the digital recording appellant placing

his mouth on Moore’s daughter’s vaginal area. Further, a condensed version of the digital

recording showing the alleged improper contact was introduced into evidence and shown

to the jury. The jury returned a guilty verdict and the trial court sentenced appellant to life

in the Institutional Division of the Texas Department of Criminal Justice.


       Appellant raises two issues on appeal contending that the trial court should have

entered directed verdicts based on legally and factually insufficient evidence.


                                    Applicable Law and Analysis


       The standard of review applicable to the denial of a motion for directed verdict is the

same as that applied in reviewing the sufficiency of the evidence. Williams v. State, 937

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S.W.2d 479, 482 (Tex.Crim.App. 1996); Madden v. State, 799 S.W.2d 683, 686

(Tex.Crim.App. 1990) (challenge to the trial judge's ruling on a motion for an instructed

verdict is a challenge to the sufficiency of the evidence). When reviewing challenges to

both the legal and factual sufficiency of the evidence to support the verdict, we first review

the legal sufficiency challenge. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.

1996). If the evidence is legally sufficient to support the verdict, we then review the factual

sufficiency challenge if one is properly raised. See id. at 133.


       In reviewing the legal sufficiency of the evidence, we review all 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. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560, 573 (1979); Ross v. State, 133

S.W.3d 618, 620 (Tex.Crim.App. 2004).         The jury is the sole judge of the weight and

credibility of the evidence.    Jackson, 443 U.S. at 319. Circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor. Guevara v. State, 152

S.W.3d 45, 49 (Tex.Crim.App. 2004). Furthermore, the standard of review is the same for

both direct and circumstantial evidence. Id.


       Appellant’s sole contention is that, as there was no testimony of actual contact of

appellant’s mouth with Moore’s daughter’s vaginal area nor direct digitally recorded

evidence clearly showing contact, the evidence was insufficient to prove each element of

the offense of aggravated sexual assault of a child.1 However, the police officer who


       1
      Appellant was charged with aggravated sexual assault by “intentionally and
knowingly caus[ing] the sexual organ of . . . [the] child who was then and there younger

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reviewed the tape, Moore, and the victim all testified that it appeared that appellant’s mouth

contacted the victim’s vagina. Further, the jury also had the opportunity to view the digital

recording. Though the evidence is circumstantial, the State presented evidence to the jury

covering all the elements of the offense. Viewing the evidence in light most favorable to

the verdict, any rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. We conclude that the verdict is based on legally sufficient

evidence.


       When an appellant challenges the factual sufficiency of his conviction, the reviewing

court must determine whether, considering all the evidence in a neutral light, the jury was

rationally justified in finding defendant guilty beyond a reasonable doubt. See Zuniga v.

State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). There are two ways in which the

evidence may be factually insufficient.       First, when considered by itself, evidence

supporting the verdict may be too weak to support the finding of guilt beyond a reasonable

doubt. Id. Second, considering all of the evidence, both for and against the verdict, the

contrary evidence may be so strong that the beyond-a-reasonable-doubt standard could

not have been met. Id. at 484-85. In performing a factual sufficiency review, we are to give

deference to the fact finder’s determinations involving the credibility and demeanor of

witnesses. Id. at 481. We may not substitute our judgment for that of the fact finder unless

the verdict is clearly wrong or manifestly unjust. See id. at 481-82. An opinion addressing

factual sufficiency must include a discussion of the most important and relevant evidence



than 14 years of age, and not the spouse of the said defendant, to contact the mouth of
the said defendant.” See TEX . PENAL CODE ANN . § 22.0211 (Vernon Supp. 2005).

                                              4
that appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603

(Tex.Crim.App. 2003).


       Moore testified that her suspicions were raised by appellant’s interaction with her

daughter and that the camera recorded appellant touching her daughter during the middle

of the night. Further, the jury was able to review the condensed recording and were able

to evaluate appellant’s actions and intentions. Appellant contends that the evidence is too

weak to prove beyond a reasonable doubt that his mouth came in contact with the victim’s

vagina. Specifically, appellant points to cross examination where the witnesses testified

that they could not actually see appellant’s mouth coming into contact with Moore’s

daughter’s vaginal area. Appellant further contends that the digital recording fails to clearly

show his mouth on Moore’s daughter’s vagina, and thereby concludes that the State failed

to sufficiently prove all the elements of the offense. Although the digital recording which

recorded from above the victim’s bed did not have an angle that could clearly show

appellant’s mouth contacting the victim’s vagina, the recording did show appellant moving

aside the victim’s shorts before moving his head toward the victim’s midsection. Viewing

the recording of appellant’s actions at night while the victim was asleep, the jury could have

concluded that his actions were consistent with the alleged offense. Since the jury’s

judgment is not clearly wrong or manifestly unjust, we will defer to the jury’s determination

and conclude that the evidence is not so weak as to fail to support the verdict beyond a

reasonable doubt. See Zuniga, 144 S.W.3d at 481. After reviewing all the evidence in a

neutral light, and giving deference to the jury’s determinations involving the credibility and

demeanor of witnesses, see id. at 481, we conclude that the jury was rationally justified in


                                              5
finding defendant guilty beyond a reasonable doubt. See id. at 484. We conclude that the

trial court did not err in denying appellant’s request for a directed verdict for insufficient

evidence.


                                         Conclusion


       For the foregoing reasons, we affirm.



                                                  Mackey K. Hancock
                                                     Justice




Do not publish.




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