             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-18-00162-CR
      ___________________________

  MAGDIEL VALENCIA JR., Appellant

                     V.

          THE STATE OF TEXAS


   On Appeal from the 431st District Court
           Denton County, Texas
       Trial Court No. F16-2011-431


Before Sudderth, C.J.; Gabriel and Womack, JJ.
 Memorandum Opinion by Justice Womack
                           MEMORANDUM OPINION

                                 I. INTRODUCTION

      A jury convicted Magdiel Valencia Jr. of the offense of attempted sexual

assault. Valencia sought punishment from the trial court, which sentenced him to

confinement for ten years. In a single issue, Valencia challenges the sufficiency of the

evidence to support his conviction. We affirm the trial court’s judgment.

                                  II. BACKGROUND

A.    Investigation

      On November 12, 2015, Detective Trevor Taylor of the Frisco Police

Department began an investigation into a reported sexual assault by Valencia on

Jacqueline1 at Massage Envy in Frisco, Denton County, Texas. As a result of that

investigation, Taylor identified and contacted other Massage Envy clients, including

Kimberly and Julie.

      On February 16, 2016, Taylor called and spoke with Kimberly about her

experience at Massage Envy. Kimberly, who was in the presence of her husband

during the call, immediately “broke down.” Kimberly subsequently spoke several

times with Taylor by telephone, and those conversations were recorded. Although

Jacqueline’s report of sexual assault triggered the investigation, Valencia was




      1
       We have replaced the names of the clients with pseudonyms.


                                           2
eventually indicted for committing the offense of attempted sexual assault on

Kimberly.

B.    Trial

      1.      Kimberly’s Testimony

      On October 17, 2015, a few weeks after her father had died, Kimberly visited

Massage Envy in Frisco. Kimberly had received only one other massage and that was

approximately two years earlier.

      Valencia was Kimberly’s massage therapist and was the first male from whom

she had received a massage. Kimberly completed forms and specified problem areas

including her neck and upper back and noted that she had varicose veins in her legs.

      After Valencia led Kimberly to the massage room, they discussed her

paperwork, and Valencia informed Kimberly that he would be unable to massage her

legs due to her varicose veins. After Valencia left the room, Kimberly undressed

down to her thong underwear and laid face-down on the massage table under a sheet

that covered her body up to her armpits.

      Valencia reentered the room and began massaging the head area of Kimberly’s

upper back and shoulder area and then moved to her left side and began caressing her

hand by interlocking fingers in a very sensual way, which Kimberly demonstrated at

trial. Valencia took Kimberly’s hand, repeatedly rubbed it against the crotch of his

pants, and began breathing audibly. According to Kimberly, although she could feel



                                           3
Valencia’s erection, she thought to herself, “[T]his can’t be happening[,]” and said

nothing at the moment because she was “frozen.”

      As he began massaging Kimberly’s back, Valencia’s body was touching the top

of her head. Kimberly was unable to see whether it was Valencia’s crotch touching

her head. Valencia moved to Kimberly’s right side and began rubbing her right hand

against his crotch. Valencia began massaging Kimberly’s upper thigh in a kneading

motion, which caused Kimberly’s underwear to go “in between” and expose her

vagina and “butt.” Using a mannequin, Kimberly demonstrated how Valencia had

repeatedly used his finger, made skin-to-skin contact, and touched her labia for a

period “much longer” than “a few seconds.”2 Kimberly “[could not] believe this

[was] happening[]” and admitted that there were portions of her experience that she

could not remember. However, she remembered that while she was on her back,

Valencia repeated the same contact of her leg and labia, making skin-to-skin contact

and remaining within an inch of her labia when not making contact. Kimberly

noticed Valencia’s breathing had become audible.

      At the end of the session, Valencia left the room, and Kimberly dressed.

Valencia returned and asked Kimberly whether she “was okay.” Kimberly paid,

entered her car, and cried. She left without reporting her experiences to Massage


      2
       Overruling defense counsel’s objections, the trial court permitted the State to
question Kimberly while using demonstrative evidence, including a table, a
mannequin, and a sheet.


                                          4
Envy, the police, or her husband because she was ashamed and was dealing with her

father’s death. The recorded telephone conversations between Taylor and Kimberly

arising from Taylor’s initial investigation of the case were admitted into evidence, and

portions were later published to the jury.

      2.     Evidence of Intent or Absence of Mistake or Accident

      The trial court allowed the State to offer through Julie and Jacqueline evidence

that Valencia may have committed wrongful acts other than those charged in the

indictment and repeatedly instructed the jury (1) that such evidence was to be

considered only for the limited purpose of showing Valencia’s intent or absence of

mistake or accident with respect to the charged offense and (2) that consideration of

the evidence for any other purpose would be improper.

             a.     Julie’s Testimony

      During Julie’s massage at Massage Envy in Frisco on November 11, 2015,

Valencia massaged her upper thigh area in an up-and-down and then side-to-side

motion and began massaging beneath her underwear, which made Julie

uncomfortable. Valencia continued, placed his hand close to Julie’s vaginal opening,

made skin-to-skin contact, and then over five or six minutes touched but did not

penetrate her vaginal opening several times.        Julie “kind of froze and . . . was

embarrassed” but did not say anything to Valencia. While Julie was on her back,

Valencia again massaged her beneath her underwear and did “[t]he same thing.” Julie

knew this was wrong but did not know what to say and did not speak up. Although

                                             5
Julie pulled her sheet up repeatedly, Valencia pushed the sheet down and massaged

Julie’s breasts inappropriately, skin-to-skin, below the sheet. Julie did not say anything

but began to cry. Although Julie had specified before her massage began that she did

not want her face touched, for several minutes Valencia nevertheless caressed Julie’s

lips and ear sensually and pulled on her ear. Julie did not speak up and waited “for it

to be over.” After she dressed, Julie complained to the front office and filed a

complaint against Valencia.

             b.     Jacqueline’s testimony

      On November 12, 2015, Jacqueline went to Massage Envy in Frisco with her

mother and sister. On a form completed prior to her massage, Jacqueline specified

that it was acceptable for her face, scalp, and gluteus maximus area to be massaged.

Jacqueline noticed that Valencia was focusing the massage high on her inner, upper

thighs in the area where the thigh muscle meets the crotch, about one inch from

Jacqueline’s vagina. Jacqueline was in denial and did not want to think anything

terrible was happening to her. While on her back, Valencia used a lot of painful

pressure to massage Jacqueline’s inner groin area and “basically touch[ed]” her vagina,

touched her genitals with his hand, rubbed her “clitoris and outside,” and then placed

his finger inside Jacqueline’s vagina. Valencia’s breathing was “rather hard,” and

when she opened her eyes, Valencia’s face was inches from Jacqueline’s with his

mouth open and his tongue sticking out as if to kiss her. When Jacqueline asked,

“[W]hat are you doing?,” Valencia responded, “Okay.” Jacqueline believed that she

                                             6
was sexually assaulted although she initially tried to convince herself during the

massage that it was not happening. Jacqueline described herself as “frozen in my

head” while she thought of what she should do, and Valencia then said, “[O]kay,

we’re finished with this session.” Jacqueline informed a manager about Valencia’s

acts and then waited for and spoke with police and informed them that Valencia had

placed his finger inside her vagina.

                                    III. DISCUSSION

A.    Sufficiency of the Evidence

      In a single issue, Valencia contends that the evidence was not sufficient to

convict him of attempted sexual assault. We disagree.

      1.     Standard of Review

      Federal due process requires that the State prove beyond a reasonable doubt

every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.

2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary-

sufficiency review, we view all the evidence in the light most favorable to the verdict

to determine whether any rational factfinder could have found the crime’s essential

elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard gives full

play to the factfinder’s responsibility to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts. See

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Queeman, 520 S.W.3d at 622.

                                            7
      The factfinder alone judges the evidence’s weight and credibility. See Tex. Code

Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622. Thus, when performing an

evidentiary-sufficiency review, we may not re-evaluate the evidence’s weight and

credibility and substitute our judgment for the factfinder’s. Queeman, 520 S.W.3d at

622. Instead, we determine whether the necessary inferences are reasonable based on

the evidence’s cumulative force when viewed in the light most favorable to the

verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); see Villa v. State,

514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The court conducting a sufficiency

review must not engage in a ‘divide and conquer’ strategy but must consider the

cumulative force of all the evidence.”). We must presume that the factfinder resolved

any conflicting inferences in favor of the verdict, and we must defer to that resolution.

Murray, 457 S.W.3d at 448–49.

      The standard of review is the same for direct and circumstantial evidence cases;

circumstantial evidence is as probative as direct evidence in establishing guilt. Jenkins

v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).              We must scrutinize

circumstantial evidence of intent as we do other elements of an offense. Laster v. State,

275 S.W.3d 512, 519–20 (Tex. Crim. App. 2009).           But when a record supports

conflicting inferences, we “must presume—even if it does not affirmatively appear in

the record—that the trier of fact resolved any such conflict in favor of the

prosecution, and must defer to that resolution.” Matson v. State, 819 S.W.2d 839, 846

(Tex. Crim. App. 1991).

                                           8
       2.     Applicable Law

       A person commits the offense of sexual assault if he intentionally or knowingly,

without the complainant’s consent, causes the penetration of the anus or sexual organ

of another person by any means.3 Tex. Penal Code Ann. § 22.011(a)(1)(A). A person

acts intentionally, or with intent, with respect to the nature of his conduct or to a

result of his conduct when it is his conscious objective or desire to engage in the

conduct or cause the result.      Id. § 6.03(a).   A person acts knowingly, or with

knowledge, with respect to the nature of his conduct or to circumstances surrounding

his conduct when he is aware of the nature of his conduct or that the circumstances

exist. Id. § 6.03(b). A person acts knowingly, or with knowledge, with respect to a

result of his conduct when he is aware that his conduct is reasonably certain to cause

the result. Id.

       To attempt to commit sexual assault, the actor must have specific intent to

commit the offense, which is established when the person does an act amounting to

more than mere preparation that tends but fails to affect the commission of the

intended offense. Id. § 15.01(a). The element “with specific intent to commit an

offense” has traditionally been interpreted to mean that the actor must have the intent

to bring about the desired result. See, e.g., Flanagan v. State, 675 S.W.2d 734, 741 (Tex.

Crim. App. [Panel Op.] 1982). Generally, a person’s intent to commit an offense

       Because they are not relevant to our analysis in this case, we have omitted the
       3

other means by which the offense of sexual assault may be committed.


                                            9
must be established by circumstantial evidence and may be inferred from the person’s

acts, words, and conduct, as well as the surrounding circumstances. See Hernandez v.

State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991); Romo v. State, 568 S.W.2d 298, 304

(Tex. Crim. App. 1977) (stating that actor’s intent to complete the offense may be

inferred from his acts). To prove that Valencia committed attempted sexual assault,

the State was required to show that Valencia, with specific intent to commit sexual

assault against Kimberly, performed an act—touching the sexual organ of Kimberly

with Valencia’s finger—that amounted to more than mere preparation that tended,

but failed, to effect the commission of the offense. See Tex. Penal Code Ann.

§§ 15.01(a), 22.011(a)(1)(A).

B.    Analysis

      1.     Terminology

      Valencia’s challenge to the sufficiency of the evidence to support his conviction

is founded in part on his assertion that the State was required to prove that he had

attempted but had failed to touch a specifically identified portion of Kimberly’s sexual

organ and that the State’s witnesses’ testimony was general and non-specific. Valencia

specifically complains that the State’s witnesses failed to use specific terms to

differentiate the component parts of “the female sexual organ” and instead used

general terms, which rendered it impossible for a rational jury to find that he

knowingly or intentionally attempted to penetrate Kimberly’s sexual organ.

Essentially, Valencia asserts that the jury could properly reach its verdict only by

                                          10
concluding that he had attempted but failed to touch Kimberly’s sexual organ beyond

the labia majora and argues that because the testimonial evidence at trial only generally

referred to “labia”—rather than specifically to the terms “labia majora,” “labia

minora,” or to a particular labium—and to the vernacular term “vagina,” the evidence

is insufficient to permit a rational juror to deduce that he tried but failed to penetrate

Kimberly’s female sexual organ.

      The attempted sexual assault offense alleged in this case did not require an act

of penetration, and the State’s burden was not to prove penetration of Kimberly’s

female sexual organ. See Steadman v. State, 280 S.W.3d 242, 247–48 (Tex. Crim. App.

2009) (explaining that vaginal penetration is not required; only penetration of the

female sexual organ). Rather, the State was required to prove that with the specific

intent to commit sexual assault, Valencia performed an act, alleged to have been the

touching of Kimberly’s female sexual organ with Valencia’s finger, that amounted to

more than mere preparation that tended, but failed, to effect the commission of

sexual assault. The court of criminal appeals has observed that “female sexual organ”

is a common term that has not acquired a technical meaning, and jurors are permitted

to interpret the term according to common usage. Green v. State, 476 S.W.3d 440, 445

(Tex. Crim. App. 2015) (holding that court of appeals correctly determined that trial

court’s inclusion of non-statutory definitions of terms “penetration” and “female

sexual organ” in jury charge was improper because they are common terms that have

not acquired a technical meaning).

                                           11
      In the application section of his brief, Valencia attempts to rely on Justice

Dauphinot’s dissent in Rushton v. State, No. 02-11-00419-CR, 2013 WL 709060, at *8

(Tex. App.—Fort Worth Feb. 28, 2013, no pet.) (mem. op., not designated for

publication) (Dauphinot, J. dissenting) (discussing the use or misuse of specific

terminology relating to the female sexual organ). Rushton is distinguishable in part

because the indictment in that case alleged multiple offenses—none of which

involved attempt as this case does—and unlike this case, the appellant in Rushton

challenged the jury charge for its failure to specify the manner of contact. 2013 WL

709060, at *1.

      2.        Sufficient Evidence

      Valencia posits that although Julie’s and Jacqueline’s testimony was offered as

evidence that he had acted intentionally and knowingly when touching Kimberly, that

evidence bears no connection to Kimberly’s claim of attempted sexual assault and did

not permit the jury to conclude that he had attempted but failed to penetrate

Kimberly’s sexual organ. However, as the trial court repeatedly cautioned the jury

during trial, Julie’s and Jacqueline’s testimony was admitted for the limited purpose of

showing Valencia’s intent or absence of mistake or accident in relation to the

commission of the offense. See Tex. R. Evid. 404(b)(2) (stating that evidence of a

crime, wrong, or other act may be admissible for purposes of proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack

of accident).

                                          12
       Moreover, the jury was permitted to infer Valencia’s intent from his acts,

words, and conduct, as well as the circumstances surrounding those acts, words, and

conduct. See Hernandez, 819 S.W.2d at 810; Romo, 568 S.W.2d at 304. The acts and

conduct that support the jury’s inference of intent were established by Kimberly’s

testimony that Valencia had massaged her hands sensually, had placed her hands on

his erect penis, had “kneaded” her upper thighs near her buttocks so as to expose her

vaginal area, had touched or grazed her labia with his finger or hand repeatedly while

Kimberly was on her stomach and back and had rubbed her within one inch of her

labia, and had begun breathing audibly as the massage therapy session progressed.

       After viewing the record in the light most favorable to the verdict, we conclude

that a rational juror could have found that Valencia, with specific intent to commit

sexual assault, performed an act—touching Kimberly’s female sexual organ with

Valencia’s finger—that amounted to more than mere preparation that tended, but

failed, to effect the commission of the offense. See Tex. Penal Code Ann. §§ 15.01(a),

22.011(a)(1)(A). Because the evidence is sufficient to support Valencia’s conviction

for the offense of attempted sexual assault beyond a reasonable doubt, we overrule

Valencia’s sole issue.

                                  IV. CONCLUSION

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




                                           13
                               /s/ Dana Womack

                               Dana Womack
                               Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: July 3, 2019




                          14
