                                                                                       ACCEPTED
                                                                                  13-14-00307-CR
                                                                  THIRTEENTH COURT OF APPEALS
                                                                         CORPUS CHRISTI, TEXAS
                                                                            10/21/2015 3:03:13 PM
                                                                                 Dorian E. Ramirez
                                                                                            CLERK

                         CAUSE NO. 13-14-00307-CR

                    IN THE COURT OF APPEALS        FILED IN
                                           13th COURT OF APPEALS
          FOR THE THIRTEENTH SUPREME JUDICIAL     DITRICT
                                        CORPUS CHRISTI/EDINBURG, TEXAS
                     CORPUS CHRISTI, TEXAS 10/21/2015 3:03:13 PM
                                                     DORIAN E. RAMIREZ
                                                          Clerk

               ANA DEISI MARTINEZ BANOS., APPELLANT

                                    V.

                     THE STATE OF TEXAS, APPELLEE


         APPEAL OF TRIAL COURT CASE NO. CR-1220-13-A
  FROM THE 206TH JUDICIAL DISTRICT OF HIDALGO COUNTY, TEXAS
                The Honorable Jaime Tijerina, Presiding


                       BRIEF OF STATE/APPELLEE


                                  RICARDO RODRIGUEZ, JR.
                                  CRIMINAL DISTRICT ATTORNEY
                                  HIDALGO COUNTY TEXAS

                                  MICHAEL W. MORRIS, ASSISTANT
                                  State Bar No. 24076880
                                  Lead Counsel for Appellee

                                  Office of Criminal District Attorney
                                  Hidalgo County Courthouse
                                  100 N. Closer Blvd.
                                  Edinburg, Texas 78539
                                  Telephone: (956) 318-2300 ext. 781
                                  Telefax:     (956) 380-0407

                                  ATTORNEYS FOR THE STATE
Oral argument is not requested

                                    i
                 IDENTITY OF PARTIES AND COUNSEL

      APPELLANT in this case is Anan Deisi Martinez Banos.

      APPELLANT is represented on appeal by Hon. O. Rene Flores, 320 W.

Pecan Blvd., McAllen, Texas 78501.

      APPELLANT was represented at trial by Hon Florencio Lopez, 110 S. 12th,

Suite L, Edinburg, Texas 78539.

      APPELLEE in this case is the State of Texas, by and through her District

Attorney for Hidalgo County, the Hon. Ricardo Rodriguez, Jr., Office of Criminal

District Attorney, Hidalgo County Courthouse, 100 N. Closner Blvd., Edinburg,

Texas 78539.

      APPELLEE is represented on appeal by Hon. Michael W. Morris, Assistant

District Attorney for Hidalgo County, Hidalgo County Courthouse, 100 N. Closner

Blvd., Edinburg, Texas 78539.

      APPELLEE was represented at trial by Hon. Graciela Reyna, Assistant

District Attorney for Hidalgo County, and Hon. Magdalena Hinojosa, Assistant

District Attorney for Hidalgo County, Hidalgo County Courthouse, 100 N. Closner

Blvd., Edinburg, Texas 78539.




                                       ii
                                               TABLE OF CONTENTS


Identification of Counsel and Parties ................................................................... ii

Table of Contents ................................................................................................ iii

Index of Authorities ..............................................................................................v

Notation as to Citation ....................................................................................... vii

Statement of the Case........................................................................................ viii

Issues Presented (Restated) ............................................................................... viii

Note as to Oral Argument ................................................................................. viii

Statement of Facts .................................................................................................1

Summary of the Argument....................................................................................4

Argument...............................................................................................................4

I.         There was not a fatal variance between the charge as alleged and
           the proof at trial ........................................................................................4

      A. Standard of Review ................................................................................4

      B.     Party Liability does not give rise to a fatal variance ..........................5

II.        The evidence is sufficient to overcome the challenge to denial of
           motion for directed verdict of acquittal and the claim of
           evidentiary insufficiency ..........................................................................8

      A. Standard of Review ................................................................................9

      B.     The evidence is sufficient to support the jury’s verdict .................. 10




                                                             iii
Prayer for Relief ................................................................................................. 13

Certificate of Compliance .................................................................................. 14

Certificate of Delivery ....................................................................................... 15




                                                            iv
                                 INDEX OF AUTHORITIES

                                                 Cases

Barron v. State, 773 S.W.2d 44 (Tex. App. —Houston [1st Dist.] 1989)............7

Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) .......................................4

Chambers v. State, 805 S.W.2d 459 (Tex. Crim. App. 1991) ..............................9

Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000) .................................... 10

Goff v. State, 931 S.W.2d 537 (Tex. Crim. App. 1995)................................... 5, 10

Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) .............................. 4, 5

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ......................................9

Jackson v. Virginia, 443 U.S. 307 (1979) ............................................................9

Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) .............................. 6, 10

Marable v. State, 85 S.W.3d 287 (Tex. Crim. App. 2002) ............................. 5, 10

Miranda v. State, 391 S.W.3d 302 (Tex. App. —Austin 2012 ............................7

Powell v. State, 194 S.W.3d 503 (Tex. Crim. App. 2006) .............................. 5, 10

Rainey v. State, 2013 WL 692477 (Tex. App. —Austin Feb. 22, 2013)......... 7, 8

Sorto v. State, 173 S.W.3d 469 (Tex. Crim. App. 2005) ................................. 5, 10

Villarreal v. State, 286 S.W.3d 321 (Tex. Crim. App. 2009) ........................... 10



                                                    v
Zavala v. State,
956 S.W.2d 715 (Tex. App.—Corpus Christi 1997, no pet.) ...............................8


                                            Statutes and Rules

TEX. PENAL CODE § 7.01 (2015) ............................................................................ 6, 8

TEX. PENAL CODE § 7.02 (2015) .................................................................... 6, 10, 11

TEX. PENAL CODE § 22.021 (2015) .................................................................. 5, 8, 10




                                                        vi
                        NOTATION AS TO CITATION

Citation to the record of the case below will be as follows:

   1. Citation to the eight volume Reporter’s Record (RR) and the one volume

      Supplemental Reporter’ Record (SRR) will be to volume and page, e.g., “2

      RR 12” refers to page 12 of volume 2 of the Reporter’s Record.

         a. Citation to State’s exhibits will be to volume and exhibit, e.g., “8 RR

             SX 1” refers to State’s exhibit one found within volume six of the

             Reporters Record.

   2. Citation to the single-volume Clerk’s Record (CR) will be to page only, e.g.,

      “CR 15” refers to page 15 of the Clerk’s Record.

   3. Citation to Appellant’s Brief (AB) will be to page only, e.g., “AB 6” refers

      to page 6 of the Appellant’s Brief.




                                         vii
                         STATEMENT OF THE CASE

      The State adopts Appellant’s Statement of the Case.



                              ISSUES PRESENTED

        I.   There was not a fatal variance between the charge as alleged and the
             proof at trial.

       II.   The evidence is sufficient to overcome the challenge to denial of
             motion for directed verdict of acquittal and the claim of evidentiary
             insufficiency



                      NOTE AS TO ORAL ARGUMENT

      The State of Texas respectfully submits that oral argument in the case at bar

would not serve to enlighten the Court further, because the facts and legal

arguments are adequately presented in the briefs and record. The State respectfully

submits that oral argument in the instant case is not necessary and should therefore

be denied.

      The State reserves the right to present oral argument should the Court grant

oral argument.




                                         viii
                           STATEMENT OF FACTS

      Jose Jimenez began sexually abusing his daughter Maritz when she was six

years old. 4 RR 128. The abuse began on the night Appellant was in the hospital

giving birth to Maritz’s brother. 4 RR 128. Jose came into Maritz’s room and got

undressed her and sexually assaulted her, causing pain. 4 RR 128. Jose would

place his “private” in Maritz’s privates and have intercourse with Maritz. 4 RR

130. After Appellant returned, Maritz told her what her father, Jose, had done. 4

RR 129. Appellant told her daughter that it wasn’t true and that if she told anyone

else that it was going to get worse. 4 RR 129.         Appellant and Jose had a

discussion about what Maritz had told her, and thereafter they both treated Maritz

has an enemy or liar. 4 RR 129. Maritz was afraid of both her parents because of

the abuse. 4 RR 130.

      As time went on, the sexual abuse became more frequent; increasing from

every week to nearly every day. 4 RR 130. Maritz would tell her mother about

the pain the abuse cause and Appellant would tell her she was she was a dirty girl

and did not take her to a doctor. 4 RR 131.     When Maritz was eight Appellant

began sending Maritz to have sex with Jose. 4 RR 131-32. Appellant told Maritz

she needed to be her father’s whore. 4 RR 132. This continued after the family

moved to the United States when Maritz was 10. 4 RR 133-36.            The family

moved to Weslaco. 4 RR 134. While living in Weslaco, another man, Silvio


                                         1
Carvajal, lived with the family. 4 RR 134. Carvajal was Appellant’s boyfriend. 4

RR 135. Appellant would sleep with Carvajal, while Maritz would sleep with Jose

so that he could sexually abuse her. 4 RR 135. Appellant would leave the room to

go sleep with Carvajal after Jose began sexually assaulting Maritz. 4 RR 136.

Jose was ok with his wife’s affair as long as he was allowed to continue abusing

Maritz. 4 RR 145. Appellant would send Maritz to Jose so that she could continue

her affair. 4 RR 145.

       Jose and Appellant trained Maritz and her sibling to say nothing about the

abuse going on at home. 4 RR 138. Maritz was 12 when she was pregnant with

her first child; it was Appellant who first told Maritz that she was pregnant. 4 RR

139. Appellant knew that Maritz was pregnant by her father Jose. 4 RR 139.

However, Appellant told Maritz to lie and say that she had gotten pregnant by

having sex with a random guy that she had met. 4 RR 140. Appellant told Maritz

to lie because she did not want Jose to go to jail for sexually abusing his daughter,

and because it would ruin the family. 4 RR 140. When Appellant took Maritz to

the doctors for the pregnancy, Appellant would talk for her. 4 RR 142. After

Maritz’s first child , Crystal, was born Appellant would treat Crystal like her child.

4 RR 143-44. After the birth, Jose became even more possessive of Maritz. 4 RR

144.




                                          2
      After the birth social workers became involved because Maritz was a minor.

4 RR 147. Before the social workers came for the interview, Appellant coached

Maritz on what to say. 4 RR 147. Maritz was to continue with the lie that the

father of her child was the random guy she hooked up with. 4 RR 147. Maritz and

her siblings were also coached not to discuss Appellant’s boyfriend and to say that

it was only Appellant Jose and the children living in the apartment. 4 RR 147.

      Jose continued sexually abusing Maritz after Crystal’s birth. 4 RR 148.

Maritz then became pregnant for a second time when she was 13. 4 RR 148.

Appellant told Maritz to say that the father of the second child was the same as the

first. 4 RR 150.

      Crystal was referred to a neurologist by a family physician because of

developmental issues. 4 RR 157-58. Appellant held Crystal out to be her child.

4RR 158. The neurologist conducted DNA testing. 4 RR 158. It was from this

testing that he doctor determined that Crystal was the product of an incestuous

relationship and that the Appellant was not the mother. 4 RR 158.             Maritz

attempted to commit suicide on two occasions as a result of the stress related to the

sexual abuse. 4 RR 150.

      After the abuse was discovered, Appellant gave Maritz up for placement into

foster care. 4 RR 155.       Maritz’s children and her siblings remained in her

mother’s custody. 4 RR 156.


                                          3
                      SUMMARY OF THE ARGUMENT

      Any variance in pleading in provide was not material as the only possible

variance was between principal and party liability.

The evidence was legally sufficient to show that Appellant aided, encouraged,

directed or solicited Jose Jimenez in the Aggravated Sexual Assault of Maritz

Jimenez, in that the sexual assault by Jose is undisputed and competent evidence

shows that Appellant directed Maritz to accept the abuse by Jose Jimenez and

condoned the abuse in exchange for freedom to conduct an affair of her own.

                                  ARGUMENT

    I.   There was not a fatal variance between the charge as alleged and the
         proof at trial.

      In her first ground, Appellant claims that a fatal variance exists between the

conduct as pled in the indictment and the proof offered at trial.          AB 15.

Specifically, Appellant alleges that the indictment alleged penetration of the

victim’s sex organ with the Appellant’s sex organ, while the proof at trial showed

that the penetrating sex organ was belonged to the victim’s father who also was

Appellant’s husband. AB at 15-16.

         A. Standard of Review

      A variance exists if the proof at trial differs from the allegations in the

charging instrument. See Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App.

2011) (citing Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001)). A
                                         4
variance is fatal only if the variance was material. See Gollihar, 46 S.W.3d 247-

48. A variance is material if it “fails to give the defendant sufficient notice [of the

offense alleged] or would not bar a second prosecution for the same" offense. Id.

          B. Party Liability does not give rise to a fatal variance.

       Appellant was charged by indictment with the offense of aggravated sexual

assault; in said indictment the State alleged in relevant part that:

       Ana Martinez Banos, herein after styled Defendant, on or about the 1st
       day of August A.D., 2009, and before the presentment of this
       indictment, in Hidalgo County Texas, did then and there intentionally or
       knowingly cause the penetration of the sexual organ of Maritz Jimenez,
       a child then and there younger than 14 years of age and not the spouse
       of the defendant or Jose Jimenez, by defendant’s sexual organ. CR 6.


       This indictment properly alleges the offense of Aggravated Sexual Assault, in

that it alleges the penetration of the sexual organ of a child younger than 14 years of

age by another’s sexual organ. See TEX. PENAL CODE § 22.021 (2015). Further, it is

clear that the indictment contemplates the party liability as it expressly alleges that

the victim was not the spouse of either Jose Jimenez or the Appellant.


       It is proper to submit a jury charge under Section 7.02 (a) (2) of the Penal

Code, although said concept is not alleged in the indictment. See, e.g., Powell v.

State, 194 S.W.3d 503, 506 (Tex. Crim. App 2006); Sorto v. State, 173 S.W.3d 469,

476 (Tex. Crim. App. 2005); Marable v. State, 85 S.W.3d 287, 287-88 (Tex. Crim.

App. 2002); Goff v. State, 931 S.W.2d 537, 544 n. 5 (Tex. Crim. App. 1995); See
                                             5
also TEX. PENAL CODE § 7.01(c)(2015). Further, the evidence adduced at trial raised

the issue of party liability as the evidence suggested that Maritz’s sexual organ was

penetrated by her father Jose Jimenez and that Jose was aided or abetted in this act by

the Appellant. 4 RR 130, 131-32, 150. Under Malik, a hypothetically correct jury

charge is one that “accurately sets out the law, is authorized by the indictment, does

not unnecessarily increase the State's burden of proof or unnecessarily restrict the

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

which the defendant was tried." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997). The jury charge under Section 7.02 (a) (2) of the Penal Code was

raised by the evidence and was authorized by the indictment.

      Appellant’s argument that she cannot be guilty of aggravated sexual assault

because the proof at trial showed that that Maritz’s sexual organ was penetrated by

her father Jose Jimenez rather than by Appellant’s sexual organ would render party

liability inapplicable to sexual assault or aggravated sexual assault.        If it was

Appellant’s sexual organ that penetrated the victim’s sexual organ this would always

be under principle rather than party liability. For party liability to have any meaning

in aggravated sexual assault cases, an individual would have to, acting with intent,

solicite, encourage, direct, aid, or attempt to aid another actor to commit the sexual

assault; i.e., to have helped another penetrate the victim’s sexual organ with the other

actor’s sexual organ. See TEX. PENAL CODE § 7.02(a)(2)(2015). It is clear that party


                                           6
liability is applicable to sexual assault or aggravated sexual assault cases as it has

been applied in other cases that have been affirmed on appeal. See Barron v. State,

773 S.W.2d 44, 46 (Tex. App.—Houston [1st Dist.] 1989); Miranda v. State, 391

S.W.3d 302, 309 (Tex. App.—Austin 2012).

       Further, in an unpublished opinion, the Third Court of Appeals in Austin

faced a similar claim. Rainey v. State, 2013 WL 692477 (Tex. App.--Austin Feb.

22, 2013)(memorandum opinion)1. The State would submit that this opinion is

instructive on the issue. In Rainey, the appellant claimed that a fatal variance was

caused as the indictment alleged that his sexual organ penetrated the victim’s

mouth while the proof at trial was that a co-defendant’s sexual organ penetrated the

victim’s mouth. Rainey, 2013 WL 692477 at *3. Rainey’s claim was that because

the indictment alleged his sexual organ penetrated the victim’s mouth it was a

material variance as the State proved that the victim’s mouth was penetrated by

another assailant’s sexual organ. Id at *4. This is similar to Appellant’s claim in

that she is claiming that the indictment at issue in this appeal alleged that her

sexual organ penetrated Maritz, while the proof at trial was that it was Jose’s

sexual organ that penetrated Maritz.        AB 15.      The Third Court of Appeals held

that this argument misconstrues the application of the law of parties as its applied

in aggravated sexual assault. Rainey, 2013 WL 692477 at *4. It further held that

1
 The appellant in Rainey was a codefendant to the defendant in Miranda v. State, 391 S.W.3d
302, 309 (Tex. App. Austin 2012).
                                              7
when properly applying the law of parties to sexual assault a defendant “would be

guilty as a party to aggravated sexual assault if he encouraged, directed, aided, or

attempted to aid an assailant who, as the principal actor, penetrated K.B.'s mouth

with his sexual organ, while that assailant worked in concert with another who also

committed sexual assault.” Id. When applied to the case at hand, Appellant would

be guilty as a party to aggravated sexual assault if she encouraged, directed, aided,

or attempted to aid an assailant who, as the principal actor, penetrated Maritz’s

sexual organ with his sexual organ, and it was shown that Maritz was then younger

than 14 years old. See TEX. PENAL CODE § 7.01, TEX. PENAL CODE § 22.021. The

only variance here is between whether Appellant was guilty as a principal or as a

party. This variance, if any, is immaterial.

    II.    The evidence is sufficient to overcome the challenge to denial of
           motion for directed verdict of acquittal and the claim of evidentiary
           insufficiency.

       In her second and third issue2, Appellant alleges that the evidence was

insufficient to prove that she committed the offense as alleged in the indictment.

               A. Standard of Review

       In determining whether the evidence is legally sufficient to support a

conviction, a reviewing court must consider all of the evidence in the light most
2
 As a challenge to denial of a motion for directed verdict of acquittal is, in essence, a challenge
to evidentiary sufficiency, the State of Texas will herein address Appellant’s claims of error in
denial of her directed-verdict motion and Appellant’s claim that the evidence is insufficient to
sustain conviction in a single issue. See, Zavala v. State, 956 S.W.2d 715 (Tex. App.—Corpus
Christi 1997, no pet.).
                                                 8
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.           See Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007). This "familiar standard gives full play to the responsibility of

the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443

U.S. at 319. "Each fact need not point directly and independently to the guilt of the

appellant, as long as the cumulative force of all the incriminating circumstances is

sufficient to support the conviction." Hooper, 214 S.W.3d at 13.

      If the record supports conflicting inferences, the reviewing court must

presume that the fact-finder resolved the conflicts in favor of the prosecution and

therefore defer to that determination. Jackson, 443 U.S. at 326. Further, direct and

circumstantial evidence are treated equally: "[c]ircumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt." Hooper, 214 S.W.3d at 13.

      Finally, it is well established that the fact-finder is entitled to judge the

credibility of witnesses and can choose to believe all, some, or none of the

testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex.

Crim. App. 1991). The sufficiency of the evidence is measured by the elements of

                                          9
the offense as defined by a hypothetically-correct jury charge. Villarreal v. State,

286 S.W.3d 321, 327 (Tex. Crim. App. 2009); Curry v. State, 30 S.W.3d 394, 404

(Tex. Crim. App. 2000). "Such a charge is one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State's burden of

proof or unnecessarily restrict the State's theories of liability, and adequately

describes the particular offense for which the defendant was tried." Villarreal, 286

S.W.3d at 327; see Malik, 953 S.W.2d at 240.

         B. The evidence is sufficient to support the jury’s verdict.

      Under Texas Penal Code section 22.021, a person commits the offense of

Aggravated Sexual Assault if, they cause the penetration of the sexual organ of a

child younger than 14 by any means. See TEX. PENAL CODE § 22.021. As she was

charged in the indictment the Stated was limited to the theory that said penetration

was caused by a sexual organ. CR 6. To prove that Appellant was guilty of

Aggravated Sexual Assault, under a party theory, the State was required to show

that he was criminally responsible for the actions of another under the law of

parties. See TEX. PENAL CODE ANN § 7.02.        As previously stated, it is proper to

submit a jury charge on Section 7.02 (a) (2), although that concept is not alleged in

the indictment. See, e.g., Powell, 194 S.W.3d at 506; Sorto, 173 S.W.3d at 476;

Marable, 85 S.W.3d at 287-88; Goff, 931 S.W.2d at 544 n. 5. Texas Penal Code

section 7.02(a)(2) makes a person criminally responsible for an offense committed


                                         10
by the conduct of another if, acting with the intent to promote or assist the

commission of the offense, she solicits, encourages, directs, aids, or attempts to aid

the other person to commit the offense. See TEX. PENAL CODE § 7.02. Therefore

under a jury charge that applies the law of parties to aggravated sexual assault as

alleged in the indictment, the State was required to prove that Appellant

encouraged, directed, aided, or attempted to aid an assailant who, as the principal

actor, penetrated Maritz’s sexual organ with said principal actor’s sexual organ,

and it was shown that Maritz was then younger than 14 years old.

      Appellant alleges only that there was no proof that her sexual organ

penetrated Maritz’s sexual organ. However, under the law of parties ,the State was

not required to show that Appellant’s sexual organ penetrated Maritz’s sexual

organ. Rather the State was required to prove that Appellant, acting with the intent

to promote or assist the commission of the offense; solicited, encouraged, directed,

aided, or attempted to aid another person commit the offense. In other words that

Appellant solicited, encouraged, directed, aided, or attempted to aid Jose in his

sexual assault of Maritz.

      The evidence adduced at trial clearly showed that Jose did in fact sexually

assault Maritz. 4 RR 128-139. Further, the evidence shows that Maritz was twice

impregnated as a result of the continuing sexual assault by Jose. 4 RR 139; 148.

Appellant doesn’t even challenge that Maritz was sexual assaulted by Jose. AB 33.


                                         11
Maritz testifies that the sexual abuse began when she was six and continued until

she was 14 when her first child, Crystal, was diagnosed with autism and genetic

screening showed that said child was fathered by Jose. 4 RR 128, 158-59. She

also testified that she was twelve when she was pregnant with her first child, and

thirteen when pregnant with her second. 4 RR 139, 148. This testimony clearly

demonstrates that Maritz was sexually assaulted by Jose.

      Maritz further testified that Appellant, her mother, was aware of the sexual

abuse Maritz was suffering at the hands of Jose; in fact, that Appellant was aware

of the abuse from the time Maritz was six years old. 4 RR 129. Maritz also

testified that Appellant would send her to Jose, her father, so that he could have

sexual intercourse with her. 4 RR 131-32, 145. Appellant would then sleep with

her boyfriend. 4 RR 145. Jose and Appellant had an arrangement that allowed

Appellant to sleep with her boyfriend, Carvajal, and Jose to sleep with Maritz. 4

RR 147.    Maritz further testified that Appellant directed her to lie to Child

Protective Services when asked who the father of her children was. 4 RR 147.

The evidence is clearly sufficient to prove that Appellant was guilty as a party to

Jose’s aggravated sexual assault of Maritz.




                                        12
                            PRAYER FOR RELIEF

      WHEREFORE, the State of Texas respectfully requests that the judgment of

the trial court be, in all things, AFFIRMED.


                                Respectfully submitted,

                                RICARDO RODRIGUEZ, JR.
                                CRIMINAL DISTRICT ATTORNEY
                                HIDALGO COUNTY TEXAS

                                  /s/ Michael W. Morris
                                ________________________________
                                Michael W. Morris, Assistant
                                Criminal District Attorney

                                State Bar No. 24076880

                                Office of Criminal District Attorney
                                Hidalgo County Courthouse
                                100 N. Closner Blvd.
                                Edinburg, Texas 78539
                                Telephone: (956) 318-2300 ext. 781
                                Telefax:     (956) 380-0407

                                ATTORNEYS FOR THE STATE




                                        13
                           Certificate of Compliance

I hereby certify that this document has the following number of words:

   A. Initial documents—beginning at cover page and ending at Note as to Oral
      Argument: 867 words

   B. Brief:       3116 words


   C. Total:       3983 words


                                Respectfully submitted,


                                 /s/ Michael W. Morris
                                ________________________________
                                Michael W. Morris, Assistant
                                Criminal District Attorney

                                State Bar No. 24076880

                                Office of Criminal District Attorney
                                Hidalgo County Courthouse
                                100 N. Closner Blvd.
                                Edinburg, Texas 78539
                                Telephone: (956) 318-2300 ext. 781
                                Telefax:     (956) 380-0407




                                        14
                       CERTIFICATE OF DELIVERY

      This is to certify that a true and correct copy of the foregoing Brief of

State/Appellee was sent to Appellant’s attorney of record, O. Rene Flores through

the electronic filing service at Floreslaw1@aol.com.




                                              /s/ Michael W. Morris
                                             ______________________
                                             Michael W. Morris




                                        15
