Opinion filed August 1, 2013




                                     In The


        Eleventh Court of Appeals
                                  __________

                               No. 11-11-00260-CR
                                   __________

                 DESTRA DESHAWN COOK, Appellant

                                       V.

                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 350th District Court
                               Taylor County, Texas
                           Trial Court Cause No. 9890-D


                      MEMORANDUM OPINION
      The jury convicted Destra Deshawn Cook of sexual assault of a child under
the age of seventeen, and it assessed punishment at confinement for thirty-five
years. The trial court sentenced Appellant accordingly. Appellant challenges
(1) the sufficiency of the evidence to support his conviction and (2) the trial court’s
refusal to instruct the jury on the defense of “mistake of fact.” We affirm.
                                    I. Background
      Appellant was twenty-nine years old when he and the victim engaged in
sexual intercourse. The victim’s sister told Appellant that the victim was nineteen.
When the victim’s father learned that his sixteen-year-old daughter had engaged in
sex with a twenty-nine-year-old man, he took her to the police station. The victim
told the police that she had not had sex with Appellant because she did not want to
“get him into trouble.” She later admitted that she had sex with Appellant three or
four times before she reached the age of seventeen and several times after she
turned seventeen. After he was arrested, Appellant gave a statement to police.
Although Appellant claimed that he did not have sex with the victim again after
learning her true age, he admitted that they had sex before she turned seventeen.
                                     II. Analysis
      A. Evidence of Penetration
      We first discuss Appellant’s second issue on appeal. In his second issue,
Appellant argues that the evidence is insufficient to support his conviction.
Specifically, Appellant maintains that there was a variance in the proof on
penetration and the allegations in the indictment and that the evidence was
insufficient to sustain his conviction because the prosecution never explained what
“having sex” meant. Appellant concedes, however, that in this case, “it is not so
much a variance as it is a total absence of evidence.”
      We review a challenge to the sufficiency of the evidence under the same
standard, regardless of whether it has been presented as a legal or a factual
sufficiency challenge. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.
2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet.
ref’d). Under the standard in Jackson v. Virginia, we review all of the evidence in
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the light most favorable to the verdict and determine whether any rational trier of
fact could have found, beyond a reasonable doubt, that Appellant penetrated the
victim’s female sexual organ with his male sexual organ. See Jackson v. Virginia,
443 U.S. 307, 319 (1979).       We afford almost total deference to the jury’s
credibility determinations and resolve any inconsistencies in the evidence in favor
of the verdict. Id. at 326; Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App.
2008).
      A variance is a discrepancy between the proof and the allegations in the
charging instrument. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App.
2001).     The State had to prove, as alleged in the indictment, that Appellant
knowingly and intentionally caused his sexual organ to penetrate the child’s sexual
organ. The victim told the jury over ten times that Appellant “had sex” with her.
The victim testified that she and Appellant “had sex” in a motel and at her father’s
home and that she and Appellant “had sex” three times before she turned
seventeen. The victim’s mother testified that she continually reminded her older
daughters that the victim “is way younger and cannot be doing the things they do,”
like “[d]rinking” and “being with men.” In addition, the evidence showed that
Appellant told the police: “I used protection that night, so therefore, if y’all got
anything else, it was not from me.” Appellant also told the officers that, if he had
known the victim was sixteen, he would not “have slept with her.”
      In his brief, Appellant specifically contends that “[t]he State’s position must
be that ‘having sex’ necessarily implies that the male sexual organ [is] penetrating
the female sexual organ” and compares this to “former President Clinton’s
statement: ‘I never had sex with that woman.’” Appellant’s contention rests on the
fact that “the American people believe that having sex can mean a wide variety of
things.”    Appellant argues that the term “sex” is too general to support the
conviction here because “‘having sex’ has such a flexible meaning to include oral
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sex, anal sex, and vaginal sex.” Logically, this argument goes against Appellant’s
position. Based on this argument, when someone claims that he “did not have
sex,” the listener understands this to mean that he did not have vaginal sex, and an
ambiguity exists about whether this also means that no other sex acts occurred. So,
when someone claims that he “had sex,” it is reasonable to conclude that the
listener understands this to mean that he had vaginal sex, and it is ambiguous
whether any other sex acts occurred.       Moreover, he would not be subject to
prosecution for the same offense but, rather, for different offenses because these
three acts constitute separate offenses when committed against a child. See Vick v.
State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999) (“the Legislature intended that
each separately described conduct [in Section 22.021 of the Penal Code]
constitutes a separate statutory offense.”). There is no variance, and we will now
consider Appellant’s alternative contention that there is “a total absence of
evidence” to support the jury’s verdict.
      A rational jury could have determined that the phrases “had sex,” “used
protection,” and “slept with her” were references to sexual intercourse and to the
penetration of the female sexual organ by the male sexual organ. See Obrien v.
State, No. 11-07-00201-CR, 2009 WL 875458, at *6 (Tex. App.—Eastland Apr. 2,
2009, pet. ref’d) (mem. op., not designated for publication) (“A rational jury could
have determined that by ‘oral pleasure’ appellant’s stepson was referring to oral
sex and to the penetration of mouths by sexual organs.”).         Jurors may read
statutory language as meaning anything that is acceptable in common parlance.
Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). Viewing the
evidence in the light most favorable to the verdict, we agree with Appellant that
there is no variance in the proof and conclude that a reasonable factfinder could
have found beyond a reasonable doubt that Appellant committed the offense of
sexual assault of a child as alleged in the indictment. See Watson v. State, 548
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S.W.2d 676, 679 (Tex. Crim. App. 1977) (holding victim’s testimony that
defendant had “sexual intercourse” with her was sufficient evidence of
penetration); Clay v. State, 518 S.W.2d 550, 552 (Tex. Crim. App. 1975) (holding
victim’s testimony that defendant “raped me” was sufficient evidence of
penetration); see also Smith v. State, 60 S.W.3d 885, 890 (Tex. App.—Amarillo
2001, no pet.) (“One can reasonably infer that to have sex, there is penetration of
the female sex organ.”). We overrule Appellant’s second issue on appeal.
      B. Instruction on “Mistake of Fact”
      In his first issue, Appellant claims that the trial court committed reversible
error when it failed to instruct the jury on the law of “mistake of fact.” Appellant
cites the Model Penal Code and argues that “the defense of mistaken belief should
be available when the critical age is more than ten years of age.”
      Trial courts must submit a written charge to the jury that sets forth “the law
applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). To
prove that Appellant committed the offense of sexual assault of a child, the State
had to prove he intentionally or knowingly caused the penetration of the female
sexual organ of a child with his male sexual organ. See TEX. PENAL CODE ANN.
§ 22.011(a)(2)(C) (West 2011). The statute does not require the State to show that
Appellant knew the victim was younger than seventeen years of age. The Court of
Criminal Appeals has explained that ignorance and mistake are not valid defenses
for sexual offenses involving children. Vasquez v. State, 622 S.W.2d 864, 866
(Tex. Crim. App. [Panel Op.] 1981). To support his argument, Appellant relies on
Section 213.6, comment 2 of the Model Penal Code. Appellant has presented no
authority showing that Texas has adopted the Model Penal Code, and we are not
aware of any. The trial court properly refused to submit an instruction on mistake
of fact. Appellant’s first issue is overruled.


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                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     MIKE WILLSON
                                                     JUSTICE


August 1, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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