            NUMBERS 13-13-00328-CR & 13-13-00329-CR

                                COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG

FRANK LARA JR.,                                                                       Appellant,

                                                 v.

THE STATE OF TEXAS,                                                                   Appellee.


                      On appeal from the 130th District Court
                          of Matagorda County, Texas.


                             MEMORANDUM OPINION
               Before Justices Benavides, Perkes, and Longoria
                   Memorandum Opinion by Justice Perkes
       Appellant Frank Lara Jr. appeals his convictions from two separate causes for

assault family violence and sexual assault.1 In cause 13-13-00328-CR, appellant was

indicted for assault family violence, a third-degree felony. See TEX. PENAL CODE ANN. §§


       1 Appellate Cause No. 13-13-00328-CR (assault family violence) is the appeal from trial court
cause 13-094. Appellate Cause No. 13-13-00329-CR (sexual assault) is the appeal from trial court cause
13-095.
22.01(b) (West, Westlaw through Chapter 46 2015 R.S.). A jury found appellant guilty

and assessed punishment at ten years’ incarceration in the Texas Department of Criminal

Justice, Institutional Division (“TDCJ”), plus a fine of $10,000. Appellant’s sentence,

however, was suspended and appellant was placed on community supervision. In cause

13-13-00329-CR, appellant was indicted for sexual assault, a second-degree felony.

See TEX. PENAL CODE ANN. § 22.011(a) (West, Westlaw through Chapter 46 2015 R.S.).

After a single trial on both causes, a jury found appellant guilty and assessed punishment

at sixteen years’ incarceration in TDCJ, plus a fine of $10,000. By a single issue in each

cause, appellant contends the evidence is legally insufficient to support his convictions.2

We affirm as modified.

                                           I.       BACKGROUND

        Officer Cunningham responded to a disturbance call and made contact with the

complainant, J.B.,3 who was “excited” and crying. As he spoke with J.B., he noticed red

marks on her neck that were beginning to bruise. According to J.B., appellant tried to

strangle her during an argument. Consequently, Officer Cunningham arrested appellant

and transported him to jail.

        As appellant was booked into jail, Officer Cunningham received a phone call that

J.B. also had been sexually assaulted and that appellant was the suspect. Appellant

subsequently spoke with the officers regarding the alleged sexual assault, signed a

written statement, and made a videotaped statement detailing his version of events.


        2 Appellant’s two indictments were tried in the same trial. Our analysis allows us to consider them

in a consolidated opinion.
        3   We use initials in order to protect the complainant’s privacy. Cf. TEX. R. APP. P. 9.8.
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       During the course of the sexual assault investigation, J.B. was examined by Dana

Oldham, a sexual assault nurse examiner. She discovered two acute tears in J.B.’s anus

and numerous bruises and abrasions on her neck and torso. According to Oldham, the

bruising on J.B.’s neck was consistent with a strangulation injury and the tears in her anus

were consistent with a sexual assault.

       J.B. testified that on the night she was assaulted, she and appellant had dinner

with friends and afterwards went to a bar for drinks. While J.B. and appellant were at the

bar, appellant became angry because of J.B.’s perceived “flirting” with another man.

Appellant left the bar with J.B. and drove to J.B.’s apartment. J.B. went to bed while

appellant ate in the kitchen. J.B. was in bed wearing her clothes from that evening when

appellant entered her bedroom. He ripped off her sweater and undershirt, scattering the

buttons from each article of clothing and pulled off her jeans. Appellant undressed and

laid down next to J.B. He then began reading text messages on her cell phone.

       J.B. stated that appellant, after reading a text message where J.B. described

herself as “single”, flew into a rage and began throwing her belongings around the

bedroom. She grabbed a quilt to cover herself and went into her bathroom, locking the

door behind her.    Appellant broke into the bathroom, grabbed her by her feet, and

dragged her to the bed. Once she was on the bed, he forcefully put his fingers into J.B.’s

anus. She begged him to stop and when he finally did, J.B. retreated to the bathroom

and cleaned herself with a towel.

       J.B. testified that after that happened, appellant got dressed and demanded a ride

home. J.B. refused and tried to retrieve her keys from appellant. During the struggle


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over the keys, J.B. ripped appellant’s shirt and slapped his phone out of his hand.

Appellant pushed her onto her couch and then onto the floor. When she tried to get up,

he got on top of her and began to strangle her. Eventually, appellant stopped and walked

out of the apartment. J.B. locked him out and called her friend to come over. Shortly

thereafter, J.B.’s friend arrived and contacted the police.

       When asked about the nature of her relationship with appellant, J.B. responded

that she and appellant were previously dating, but that after his visit one week prior to the

alleged assault, she informed him via text message that she no longer wanted to be in a

relationship with him. The following week, however, J.B. and appellant sent various text

messages to each other. J.B. ultimately allowed him to come stay at her apartment

again, and it was during this second rendezvous when the alleged assault occurred.

       Appellant did not testify at trial; rather, the State introduced his custodial written

and videotaped statement. Contrary to J.B.’s testimony, appellant claims that the marks

on her neck were “hickeys” and that J.B. tried to attack him when he attempted to leave

her apartment. Appellant claimed that he and J.B. engaged in consensual anal sex, but

that he could not remember if it was during an encounter several weeks prior or during

their most recent time together.

                           II.     SUFFICIENCY OF THE EVIDENCE

A.     Standard of Review and Applicable Law

       “The standard for determining whether the evidence is legally sufficient to support

a conviction is ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime


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beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original);

see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.).

“The jury is the exclusive judge of the credibility of the witnesses and of the weight to be

given testimony, and it is also the exclusive province of the jury to reconcile conflicts in

the evidence.” Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc)

(citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)).               Juries are

permitted to make reasonable inferences from the evidence presented at trial, and

circumstantial evidence is as probative as direct evidence in establishing the guilt of an

actor. Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007).

       We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). 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. Id.

       The offense of assault family violence is an assault committed against a person

whose relationship to or association with the defendant is described by section 71.0021(b)

of the Texas Family Code, and it is a third degree felony if it is established that the offense

is committed by intentionally, knowingly, or recklessly impeding the normal breathing or

circulation of the blood of the person by applying pressure to the person's throat or neck


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or by blocking the person’s nose or mouth. TEX. PENAL CODE ANN. § 22.01 (citing TEX.

FAM. CODE ANN. § 71.0021(b) (West, Westlaw through Ch. 46 2015 R.S.).                  Dating

violence means an act, other than a defensive measure to protect oneself, by an actor

that is committed against a victim with whom the actor has or has had a dating

relationship.    TEX. FAM. CODE ANN. § 71.0021(a).           Dating relationship means a

relationship between individuals who have or have had a continuing relationship of a

romantic or intimate nature. TEX. FAM. CODE ANN. § 71.0021(b).

       A person commits the offense of sexual assault if the person intentionally or

knowingly causes the penetration of the anus of another person by any means, without

that person’s consent. TEX. PENAL CODE ANN. § 22.011(a).

B.     Discussion

       1.       Assault Family Violence

       Appellant argues that the evidence is insufficient to show he committed the offense

of assault family violence. Specifically, he complains: (1) J.B’s testimony is the only

evidence supporting the State’s allegations (“he said—she said” scenario); (2) J.B.’s

personal account included contradictory statements; (3) J.B. admitted she drank alcohol

on the night of the alleged assault; and (4) J.B. injured appellant during a physical fight.

Further, appellant states that in his videotaped statement, he “explained that it was [J.B.]

who had assaulted him and [that he] detailed the events of the evening cooperatively and

voluntarily … [and] explained that the marks on J.B.’s neck were hickeys.”

       Appellant’s argument presumes his version of the events is correct and disregards

all of the other evidence admitted at trial. In particular, J.B. testified that appellant tore


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off her clothes, sexually assaulted her, and caused her injuries. After J.B. refused to

drive him home, appellant grabbed J.B.’s keys and shoved her hard onto the sofa. As

she was getting up, appellant threw her onto the floor and started choking her. J.B.

testified that she could not breathe. The State also presented evidence confirming the

sexual assault and showing that there were multiple bruises on J.B.’s neck and torso.

Lastly, it is undisputed J.B. and appellant were in a dating relationship of a continuing

romantic or intimate nature at the time of the assault.

       Appellant fails to explain what portions of J.B.’s accounts are contradictory and,

although J.B. admitted that she drank alcohol on the night of the alleged assault, she

testified that she was not intoxicated or judgmentally impaired. The jury was responsible

for determining the credibility of the witnesses and for determining who the aggressor was

with respect to appellant’s fight with J.B. See Wesbrook, 29 S.W.3d at 111. After

reviewing the evidence in the light most favorable to the prosecution, we conclude that

there is sufficient evidence in this record to show that appellant was guilty of assault family

violence. See Johnson, 364 S.W.3d at 293–94.

       2.     Sexual Assault

       Appellant further argues that the evidence is insufficient to show he sexually

assaulted J.B. Appellant asserts that along with his previous arguments, J.B. failed to

report she was sexually assaulted when the police first made contact with her. Appellant

blames the injuries to J.B.’s anus on “consensual” anal sex, and asks us to believe his

version of events and disregard all evidence to the contrary.




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       The jury is the sole judge of the credibility, and the jurors believed J.B.’s version of

events. See Brooks, 323 S.W.3d at 895; Johnson, 364 S.W.3d at 293–94 (citations

omitted). J.B. reported the sexual assault very shortly after appellant’s arrest, but before

he was booked into jail. Despite appellant’s suggestions to the contrary, we see no

significance in the short delay in J.B.’s report of a sexual assault. J.B. testified that on

the night of the assault, appellant put his fingers into her anus and that she begged him

to stop. Rather than stopping, appellant became more forceful in his assault to the point

of causing physical injury.    The State’s medical evidence supports J.B.’s testimony.

After reviewing the evidence in the light most favorable to the prosecution, we conclude

that there is sufficient evidence in this record to show that appellant was guilty of sexual

assault. See Johnson, 364 S.W.3d at 293–94.

       3.     Summary

       Reconciliation of conflicts in the evidence is within the jury’s exclusive province.

Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000) (citing Losada v. State, 721

S.W.2d 305, 309 (Tex. Crim. App. 1986)).          The jury may choose to believe some

testimony and disbelieve other testimony. See id. If there is ample credible testimony

to support appellant's conviction, the conviction will stand. See id. There is sufficient

evidence to support appellant’s convictions for both assault family violence and sexual

assault. We overrule appellant’s issues. See Villarreal, 286 S.W.3d at 327.

                                    III.   MODIFICATION

       We note that the trial court's judgment adjudicating appellant of committing assault

family violence in appellate cause number 13–13–00328–CR recites that the statute is


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section “22.011” of the Texas Penal Code.        See TEX. PENAL CODE ANN. § 22.011.

However, section 22.011 is the statute for sexual assault, whereas in this cause, appellant

was indicted and convicted of assault family violence under section 22.01. See id. § 22.01.

Likewise, the trial court’s judgment adjudicating appellant of committing sexual assault in

appellate cause number 13–13–00329–CR recites that the statute is section “22.01” of

the Texas Penal Code.      See id. § 22.01. The correct section for sexual assault is

section 22.011. See id. § 22.011.

       The rules of appellate procedure provide that an appellate court may modify the

trial court's judgment and affirm it as modified.    TEX. R. APP. P. 43.2(b). When an

appellate court has the necessary data and evidence before it for modification, the

judgment and sentence may be modified on appeal. Banks v. State, 708 S.W.2d 460,

461 (Tex. Crim. App. 1986). Accordingly, we modify the judgments in Appellate Cause

Numbers 13–13–00328–CR and 13–13–00329–CR to reflect the correct statute and

affirm as modified.

                                    IV.   CONCLUSION

       We affirm the trial court’s judgments as modified in Appellate Cause nos. 13–13–

00328–CR and 13–13–00329–CR.

                                                    GREGORY T. PERKES
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
23rd day of July, 2015.



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