Affirmed and Memorandum Opinion filed July 20, 2017.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-16-00109-CR

                        RUFINO SANDOVAL, Appellant
                                          V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 209th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1350077

                    MEMORANDUM OPINION


      A jury convicted appellant Rufino Sandoval of one count of aggravated sexual
assault of a child under fourteen years of age. Appellant contends that the trial court
erred by denying his request for a lesser-included instruction on indecency with a
child. We affirm.
                                I.    BACKGROUND

      The State indicted appellant for committing aggravated sexual assault against
his daughter by placing his sexual organ in her sexual organ. At trial, his daughter
testified that when she was ten years old, appellant raped her. He put his penis into
her vagina.

      In addition to giving this penetration testimony, the complainant also testified
that on prior occasions, appellant had performed other sexual acts on her. The
complainant told her mother (appellant’s ex-wife) about the abuse when the
complainant was in high school.

      At appellant’s trial, two of appellant’s female family members (an ex-sister-
in-law and a niece) also testified that, when they were under fourteen years of age,
appellant performed sexual acts on them or had them perform sexual acts on him.
Each of the accusers gave detailed accounts of appellant’s actions. Appellant gave a
recorded statement to police, admitting that he kissed his ex-sister-in-law when she
was a child. But, he said that the accusers were lying if they said he did anything
else to them. He also said that he was the victim of sexual abuse when he was a child.

      Appellant testified at trial that the complainant and other accusers were lying.
He testified that he never had any sexual contact with any of them.

      The trial court denied appellant’s request for an instruction on the lesser-
included offense of indecency with a child. The jury found appellant guilty of
aggravated sexual assault of a child under the age of fourteen and assessed
punishment at thirty years’ confinement.




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                        II.    LESSER-INCLUDED INSTRUCTION

       Appellant contends that the trial court erred by denying his requested
instruction on the lesser-included offense of indecency with a child. We hold that
the trial court did not err.

       We apply the two-step Rousseau test to determine whether appellant was
entitled to a lesser-included instruction. See Cavazos v. State, 382 S.W.3d 377, 382
(Tex. Crim. App. 2012); see also Rousseau v. State, 855 S.W.2d 666, 672 (Tex.
Crim. App. 1993) (citing Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981)).
Under the cognate-pleadings approach, indecency with a child by contact is a lesser-
included offense of aggravated sexual assault of a child in this case, thus satisfying
the first prong of the Rousseau test. See Evans v. State, 299 S.W.3d 138, 143 (Tex.
Crim. App. 2009) (holding that “indecency with a child is a lesser-included offense
of aggravated sexual assault of a child when both offenses are predicated on the same
act”). See generally Hall v. State, 225 S.W.3d 524, 531–35 (Tex. Crim. App. 2007)
(discussing cognate-pleadings analysis).

       The parties join issue on whether the second prong of the Rousseau test was
satisfied. Under this inquiry, a defendant is entitled to an instruction on a lesser-
included offense when there is some evidence in the record that would permit a jury
to rationally find that, if the defendant is guilty, he is guilty only of the lesser-
included offense. Bullock v. State, 509 S.W.3d 921, 925 (Tex. Crim. App. 2016);
Cavazos, 382 S.W.3d at 383. Anything more than a scintilla of evidence is adequate,
and this threshold showing is low. Bullock, 509 S.W.3d at 925.

       The evidence must establish the lesser-included offense as a valid, rational
alternative to the charged offense. Id. There must be affirmative evidence that raises
the lesser-included offense and rebuts or negates an element of the greater offense.
Cavazos, 382 S.W.3d at 385; see also Bullock, 509 S.W.3d at 925. It is not enough
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that the jury may disbelieve crucial evidence pertaining to the greater offense.
Bullock, 509 S.W.3d at 925 (citing Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim.
App. 2011)). Rather, there must be some evidence directly germane to the lesser-
included offense. Id. In reviewing the evidence, we note that the jury is permitted to
believe or disbelieve any part of a witness’s testimony. See id. at 926 (citing Jones
v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998)).

      In considering whether a lesser-included offense is a valid, rational
alternative, we must compare the statutory requirements of the greater offense and
the lesser offense to determine whether evidence exists to support a conviction for
the lesser offense but not the greater offense. See id. at 925. The key distinction
between aggravated sexual assault and indecency with a child is that aggravated
sexual assault requires penetration of the female sexual organ while indecency with
a child may be proved by mere touching of the child’s genitals or touching of the
child with the defendant’s genitals. See Evans, 299 S.W.3d at 142 (“Hence, touching
the female sexual organ with the intent to arouse or gratify sexual desire is a lesser-
included species of conduct of the intentional or knowing penetration of the female
sexual organ.” (quoting Ochoa v. State, 982 S.W.2d 904, 910 (Tex. Crim. App.
1998) (Keller, J., concurring))); compare Tex. Penal Code § 22.021(a)(1)(B)(i),
(a)(2)(B), with Tex. Penal Code § 21.11(a)(1), (c).

      Citing an unpublished case, appellant contends that the jury could have found
appellant guilty only of indecency with a child by believing and disbelieving
witnesses’ testimony as follows:

      (1) “Disbelieved appellant’s testimony that he had not engaged in any
          sexual misconduct with anyone.”
      (2) “Believed the complainant’s testimony that appellant had
          committed acts of indecency by contact against her.”


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      (3) “Believed the testimony of [appellant’s niece] that appellant
          committed acts of indecency by contact against her.”
      (4) “Believed the testimony of [appellant’s ex-sister-in-law] that
          appellant had committed acts o[f] indecency by contact with her.”
      (5) “Disbelieved that the complainant’s allegations of sexual
          misconduct had not been discussed with [family members] prior
          to th[e] interview at the assessment center.”
      (6) “Disbelieved [appellant’s ex-sister-in-law]’s testimony about a
          sexual assault since she did not make that accusation until the very
          moment she was testifying in this case.”
      (7) “Believed that the length of time between the offenses, the
          resulting maturity of the girls, and their conversations with other
          family members may have influenced their accusations against
          appellant.”
      These findings, however, would not rebut the complainant’s testimony
concerning penetration and would not enable the jury to rationally conclude that
appellant is guilty only of the lesser-included offense. In Hendrix v. State, as an
example, this court held that the defendant was not entitled to an instruction for
indecency with a child by contact under the second prong of the Rousseau test. See
150 S.W.3d 839 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). The defendant
pointed to medical testimony and records that indicated normal physical
examinations with no evidence of penetration; a cousin’s testimony that the
defendant touched the children; expert testimony that children often confuse
penetration with mere touching; and testimony and other statements from the
children concerning incidents of sexual conduct without penetration, such as
touching of their anal and genital areas. Id. at 851. This court reasoned that the
“additional evidence cited by appellant showing that there was also inappropriate
touching and masturbation does not negate or rebut the penetration element of the
greater offense of aggravated sexual assault.” Id. The medical and expert evidence
was not inconsistent with penetration and did not rebut the evidence of penetration.

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See id. Although there was evidence to support a conviction for the lesser-included
offense of indecency by contact, there was no conflict raised by the evidence that
would enable a rational finder of fact to conclude that the defendant was guilty only
of the lesser included offense. See id.

      As in Hendrix, evidence that appellant committed indecency with a child
against the complainant and other accusers on different occasions does not rebut or
negate the complainant’s testimony about penetration. Under the evidence presented
in this case, the other incidents of indecency, if proven, would amount to separate
offenses—not lesser-included offenses of the specific aggravated sexual assault
encompassed by the complainant’s testimony. Cf. Maldonado v. State, 461 S.W.3d
144, 147, 150 n.1 (Tex. Crim. App. 2015) (holding that jeopardy did not bar
prosecution for indecency with a child by contact because it was not subsumed
within a conviction for sexual assault by penetration; “The indecency with a child
by contact offenses cannot be considered lesser-included offenses because an
indecency with a child by contact on one day is not a lesser-included offense of a
sexual assault on another day.”).

      The only evidence rebutting the element of penetration was appellant’s
testimony that he had no sexual contact with the complainant. But, as appellant
concedes on appeal, this testimony does not support a lesser-included instruction for
indecency with a child by contact. See, e.g., Lofton v. State, 45 S.W.3d 649, 652
(Tex. Crim. App. 2001) (“A defendant’s own testimony that he committed no
offense, or testimony which otherwise shows that no offense occurred at all, is not
adequate to raise the issue of a lesser-included offense.”).

      In sum, the record contains no evidence directly germane to the lesser-
included offense that would enable the jury to find indecency with a child by contact



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as a valid, rational alternative to aggravated sexual assault of a child. Appellant’s
sole issue is overruled.

                                III.   CONCLUSION

      Having overruled appellant’s sole issue, we affirm the trial court’s judgment.




                                       /s/       Ken Wise
                                                 Justice


Panel consists of Chief Justice Frost and Justices Donovan and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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