                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-09-00280-CR


GERARDO CONTRERAS                                                  APPELLANT
MORALES

                                       V.

THE STATE OF TEXAS                                                      STATE


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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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                               I. INTRODUCTION

      A jury found Appellant Gerardo Contreras Morales guilty of one count of

aggravated sexual assault of a child and assessed his punishment at ninety

months’ confinement. The trial court sentenced him accordingly. In three issues,

Morales argues that the evidence was insufficient to support his conviction and

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      See Tex. R. App. P. 47.4.
that the trial co`urt erred by failing to grant his motion for a mistrial after the State

made inflammatory statements during its closing argument. We will affirm.

                       II. FACTUAL AND PROCEDURAL BACKGROUND

      Morales was hired to make repairs on a van owned by the Castillo family at

their home on August 27, 2007. The Castillo children were playing outside while

their mother was inside cooking. Mr. Castillo left the house to look for an auto

part that Morales needed, and two of the children went inside with their mother,

leaving eight-year-old Y.C. outside alone with Morales. Mrs. Castillo testified at

trial that Y.C. came into the house ―after quite a while‖ and was ―yellowish and

trembling.‖ When asked what was wrong, Y.C. did not answer immediately but

then responded that the man outside had touched her, put his hand through the

leg of her shorts, and grabbed her ―sandwich‖ (Y.C.’s term for the female sexual

organ). Mrs. Castillo instructed her other daughter to call the police and to stay

inside with Y.C. while Mrs. Castillo went outside to confront Morales.              Mrs.

Castillo testified that Morales first denied knowing what she was talking about,

but prior to the police’s arrival, he asked her to forgive him and to not call the

police. Mrs. Castillo threw Morales’s keys and cell phone as far as she could in

an effort to keep him there until the police arrived.

      The police arrived quickly and placed Morales in a patrol car. Mrs. Castillo

took Y.C. to Cook Children’s Hospital, where she was examined by Dr. Jayme

Coffman, medical director for the CARE Team, the hospital’s child abuse

program. Dr. Coffman conducted a child sexual assault exam and submitted


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swabs of Y.C.’s genital area and Y.C.’s clothing to the Fort Worth Police Crime

Lab for DNA testing.      Y.C.’s clothes and the swabs tested negative for the

presence of semen. Samples from the swabs and the clothing were submitted to

another lab for more sophisticated testing. No male DNA was detected on the

genital swabs, but a mixture of male DNA consistent with originating from at least

two males was found on Y.C.’s underwear sample.              Morales could not be

excluded as a contributor to the mixture.

      Morales was charged with three counts of aggravated sexual assault of a

child. Counts one and two were submitted to the jury; count one alleged that

Morales committed aggravated sexual assault of Y.C. by causing her sexual

organ to contact his penis, and count two alleged that he committed aggravated

sexual assault of Y.C. by inserting his finger into her female sexual organ. The

jury found Morales not guilty of the first count but guilty of the second count.

                         III. SUFFICIENCY OF THE EVIDENCE

      In his first two issues, Morales argues that the evidence is insufficient to

support his conviction for aggravated sexual assault of a child. See Tex. Penal

Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B) (Vernon Supp. 2010). Morales’s two

issues complain of the legal and factual sufficiency of the evidence, but because

the court of criminal appeals recently held that there is no meaningful distinction

between the legal sufficiency standard and the factual sufficiency standard, we

analyze Morales’s evidentiary sufficiency arguments under only the legal

sufficiency standard. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.


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App. 2010) (overruling Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App.

1996)). Specifically, Morales argues that the evidence is insufficient because of

the lack of DNA evidence linking him to the offense, the presence of DNA of

other male contributors, the lack of physical trauma to Y.C., and the existence of

defensive evidence showing that it was physically impossible for him to have

stood outside his van and penetrated Y.C.’s female sexual organ in accordance

with her testimony at trial.

                               A. Standard of Review

      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

prosecution 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); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

      This standard gives full play to the responsibility of the trier of fact 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, 99 S. Ct.

at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the

weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04

(Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008),

cert. denied, 129 S. Ct. 2075 (2009). Thus, when performing an evidentiary

sufficiency review, we may not re-evaluate the weight and credibility of the


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evidence and substitute our judgment for that of the factfinder. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine whether

the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to

the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We

must presume that the factfinder resolved any conflicting inferences in favor of

the prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793; Clayton, 235 S.W.3d at 778.

       B. Sufficient Evidence of Aggravated Sexual Assault of a Child

      A person commits aggravated sexual assault of a child if he intentionally or

knowingly causes the penetration, by any means, of the anus or sexual organ of

a child younger than fourteen years.             See Tex. Penal Code Ann.

§ 22.021(a)(1)(B)(i), (a)(2)(B).   Morales was convicted of aggravated sexual

assault by causing the penetration of Y.C.’s sexual organ with his finger.

      At trial, Y.C. testified that one afternoon when she was eight years old, she

was playing hide-and-seek with her sister when she hid inside her mother’s van.

Y.C. saw Morales standing in the open doorway of the van, and he told her to lie

down on the backseat.       When Y.C. complied, Morales began touching her

―private part‖ with his hand. He pulled the leg of her shorts aside, put his hand

up through the leg of her shorts, and put his finger inside her ―private part.‖ Y.C.

testified that he ―opened it and then he started touching [her] and then he went a

little bit more and then he started touching the very middle.‖ Morales then told

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Y.C. to get up, and when she did, he unzipped his pants and ―got his penis and

put [it] inside [her] private part.‖ When he ―started to go up and down,‖ Y.C. said

she heard her mom calling her from inside and ran inside to her mom.

      Y.C.’s testimony alone constitutes legally sufficient evidence to support

Morales’s conviction for aggravated sexual assault of a child by inserting his

finger into her female sexual organ. See, e.g., Garcia v. State, 563 S.W.2d 925,

928 (Tex. Crim. App. [Panel Op.] 1978) (noting that testimony of victim alone is

sufficient evidence to support conviction for sexual assault); West v. State, 121

S.W.3d 95, 111 (Tex. App.—Fort Worth 2003, pet. ref’d) (same). Additionally,

Mrs. Castillo corroborated her daughter’s testimony. Mrs. Castillo testified that

when she asked Y.C. what had happened, Y.C. responded, ―The man, Mom, the

man tried to do something bad to me.‖ When asked what he did, Y.C. said, ―He

put his hand in my shorts. He grabbed my sandwich.‖ Mrs. Castillo testified that

―sandwich‖ is the term Y.C. uses to refer to the female sexual organ.         Mrs.

Castillo also testified that when she confronted Morales, he asked for her

forgiveness.

      Morales points to the lack of DNA evidence affirmatively linking him to the

sexual assault, the presence of multiple male contributors of the DNA found on

Y.C.’s underwear, and the lack of physical injury or trauma to Y.C. to support his

argument. DNA testing on Y.C.’s underwear revealed the presence of at least

two male contributors of DNA, and Morales could not be excluded as a

contributor. Forensic scientist Elise Watts testified that DNA can be transferred


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to an item of clothing merely by folding and stacking the laundry of several

individuals together and that this could account for the presence of multiple

contributors on Y.C.’s clothing. Watts further testified that it was not unusual in

child sexual assault cases for DNA to not be left behind, especially when there is

no report of ejaculation.   Additionally, according to Dr. Coffman, the lack of

evidence of trauma to Y.C. was consistent with Y.C.’s description of the assault,

and it is not unusual in child sexual assault cases to see no evidence of physical

trauma to the child because penetration is typically of the labia and not of the

vagina. Dr. Coffman also testified that digital or even penile contact with the

labia does not usually cause tears or cuts but may cause temporary redness that

goes away quickly. The evidence is not rendered insufficient due to the lack of

physical evidence affirmatively linking Morales to the assault and the lack of

physical injury or trauma to Y.C.; physical evidence is not necessary to

corraborate a sexual assault victim’s testimony. See Garcia, 563 S.W.2d at 928.

      Additionally, Morales points to defense evidence at trial that it was

physically impossible for him to have penetrated Y.C.’s vagina with his penis

while he was standing outside of the van in accordance with Y.C.’s testimony.

Although the jury acquitted him of sexual assault by penetrating Y.C.’s sexual

organ with his sexual organ, Morales argues that his acquittal on this count

reflects on Y.C.’s lack of credibility and makes the evidence upon which he was

convicted less convincing. However, we may not re-evaluate the weight and




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credibility of the evidence and substitute our judgment for that of the factfinder.

See Williams, 235 S.W.3d at 750.

      Viewing the evidence in the light most favorable to the verdict, we hold that

a rational trier of fact could have found beyond a reasonable doubt that Morales

committed aggravated sexual assault of Y.C. by inserting his finger into her

female sexual organ. Consequently, we hold that the evidence is sufficient to

support Morales’s conviction, and we overrule his first and second issues. See

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.

                             IV. DENIAL OF MISTRIAL

      In his third issue, Morales argues that the trial court erred by not granting

his motion for a mistrial for inflammatory argument by the State. Specifically,

Morales complains of two statements made by the prosecutor—one that Y.C.

had gone through two years of counseling and another that Y.C.’s family had

―done everything right.‖ Morales argues that the first statement was outside the

record and that the second statement did not fall within one of the four primary

purposes of jury argument.      The trial court neither sustained nor overruled

Morales’s objection to the first statement, but the court instructed the jury to

disregard it.   The trial court sustained Morales’s objection to the second

statement and instructed the jury to disregard the prosecutor’s statement.

Morales’s subsequent request for a mistrial was denied.




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  A. Standard of Review and Law on Permissible Areas of Jury Argument

      To be permissible, the State’s jury argument must fall within one of the

following four general areas: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to argument of opposing counsel; or

(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim.

App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493 S.W.2d

230, 231 (Tex. Crim. App. 1973). When a trial court sustains an objection and

instructs the jury to disregard but denies a defendant’s motion for a mistrial, the

issue is whether the trial court abused its discretion by denying the mistrial.

Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004).

                       B. Arguments Were Permissible

      Morales argues that the State’s comment that Y.C. had undergone two

years of counseling since the time of the offense was improper because it was

outside of the record. But the State’s comment merely referenced Mrs. Castillo’s

earlier testimony that Cook Children’s Hospital referred her to a counselor, that

she took Y.C. to counseling, and that Y.C. was still in counseling at the time of

the trial, which was approximately two years after the date of the offense. Thus,

the statement was proper as a summation of the evidence. See Felder, 848

S.W.2d at 94–95; Alejandro, 493 S.W.2d at 231.

      Morales argues that the second complained-of statement—that the family

had ―done everything right‖—was improper because it did not fall within the

primary purposes of argument.      In the defense’s closing argument, defense


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counsel argued that the jury should find Morales not guilty because there was no

physical evidence to corroborate Y.C.’s story and because the police did not find

the type of evidence one would expect to find under the circumstances. During

its rebuttal closing argument, the State argued that Y.C. did exactly what our

society encourages children to do when someone does something bad to them—

tell somebody. The State continued,

      And all this talk about no trauma. What did Dr. [Coffman] tell you?
      Only in five percent of documented sexual abuse cases are there
      physical findings. Five percent. That means that we’re going to
      have to use our brains and examine the testimony of the child before
      we just get up and say, you know what, if you don’t have trauma, if
      you didn’t happen to get some DNA of his on you, he’s going to
      walk.

            That’s not the way it should work in this society. That’s not
      what we want to happen when we bring our kids to the police
      department with our child saying they were abused. Is that what we
      want? Do we want [the] police to just come to you and say, you
      know what, if you don’t have any DNA, there’s nothing we can do for
      you.

            This family has been here since the beginning. And they have
      supported her and they have been with her every step of the way.
      They have done everything right.

Viewing the argument in context, we hold that the State’s argument that the

family had done everything right was a proper answer to defense counsel’s

argument. See Felder, 848 S.W.2d at 94–95; Alejandro, 493 S.W.2d at 231.

Moreover, the State made the complained-of comment in the context of arguing

that defendants should be held accountable even in the absence of DNA

evidence affirmatively linking them to the offense. We hold that the argument



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was also a proper plea for law enforcement. See Felder, 848 S.W.2d at 94–95;

Alejandro, 493 S.W.2d at 231.

      Because both complained-of arguments were proper as a summation of

the evidence, an answer to defense counsel’s argument, or a plea for law

enforcement, we hold that the trial court did not abuse its discretion by denying

Morales’s motion for a mistrial.    See Hawkins, 135 S.W.3d at 76–77.        We

overrule Morales’s third issue.

                                  V. CONCLUSION

      Having overruled Morales’s three issues, we affirm the trial court’s

judgment.



                                                  SUE WALKER
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

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

DELIVERED: April 7, 2011




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