                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-12-00411-CR


                               ERIC MOLINA, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 137th District Court
                                  Lubbock County, Texas
        Trial Court No. 2011-431,388, Honorable John J. "Trey" McClendon, Presiding

                                      June 27, 2014

                             MEMORANDUM OPINION
                 Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


       Appellant Eric Molina appeals from his conviction by jury of the offense of sexual

assault and the trial court’s assessed punishment of twenty years of imprisonment.

Through one issue, appellant argues the evidence was insufficient to support his

conviction. We will affirm the judgment of the trial court.
                                            Background


        After appellant was indicted for sexual assault of an adult,1 he plead not guilty

and the case was tried before a jury. At trial, the victim, Cory Seth Hamersley, testified

that he drank too much beer and became drunk at a party he hosted. Hamersley left

the party with appellant and two other people, including appellant’s female friend.

Hamersley passed out and awoke at appellant’s house to find that someone was

performing oral sex on him. Initially, he testified, he thought the female was performing

the act. On realizing it was appellant, Hamersley pushed appellant off and punched him

in the head. Appellant did not testify at trial, but his female friend testified to the version

of the events appellant told her.


                                               Analysis


        Appellant’s evidentiary sufficiency argument asserts only that the evidence was

insufficient to support a finding the victim did not consent to his oral contact with the

victim’s penis. By his argument, appellant implicitly acknowledges the evidence was

sufficient to establish the other elements of the offense, that he intentionally and

knowingly engaged in the sexual conduct alleged.


        Evidence is legally sufficient to support a conviction if, after assessing all the

evidence in the light most favorable to the verdict, any rational trier of fact could find the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893,

        1
         Tex. Penal Code Ann. § 22.011(a)(1) (West 2012). This is a second degree felony offense,
punishable by imprisonment for any term of not less than 2 years or more than 20 years and a fine not to
exceed $10,000. Tex. Penal Code Ann. § 12.33 (West 2012).


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894-95 (Tex. Crim. App. 2010). We review all of the evidence, whether properly or

improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

Direct and circumstantial evidence are equally probative, and circumstantial evidence

alone can be sufficient to establish guilt. Id; Patrick v. State, 906 S.W.2d 481, 488 (Tex.

Crim. App. 1995). The jury is the sole judge of the credibility of evidence and the weight

to be attached to the testimony of witnesses. Jackson, 443 U.S. at 319. When the

record supports conflicting inferences, we presume that the jury resolved the conflicts in

favor of the verdict and defer to that determination. Id.


         As charged here, a person commits sexual assault if he: (a) intentionally or

knowingly; (b) causes the sexual organ of another person; (c) without that person’s

consent; (d) to contact or penetrate the mouth of another person, including the actor.

TEX. PENAL CODE ANN. § 22.011(a)(1)(C) (West 2012). Consent is defined as “assent in

fact, whether express or apparent.” TEX. PENAL CODE ANN. § 1.07(a)(11) (West 2012).

Sexual assault is without the consent of the other person if, among other things, the

other person has not consented and the actor knows the other person is unconscious;

or the other person has not consented and the actor knows the other person is unaware

that the sexual assault is occurring. TEX. PENAL CODE ANN. § 22.011(b)(3), (5) (West

2012).


         The uncorroborated testimony of the victim alone is sufficient to support a

conviction for sexual assault, as long as the victim tells someone other than the

defendant within a year of the offense. TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (West

2012); Quincy v. State, 304 S.W.3d 489, 497 (Tex. App.—Amarillo 2009, no pet.).

Further, it was the jury’s task to resolve conflicts in the testimony, weigh the evidence,

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and draw reasonable inferences from the evidence. Jackson, 443 U.S. at 319; Isassi v.

State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).


      Hamersley testified to his drunken condition, and denied he consented to

appellant’s sexual contact with him. He told the jury that “I remember slightly coming to

-- I was laying [sic] on my back, and I remember slightly coming to at a house. At first I

didn't realize where I was at . . . . I just remember feeling something wet down around

my penis . . . .” He further stated, “I thought it was [appellant’s female friend] was my

first thought, and then I heard [appellant’s] voice . . . . And that's when I like came to

and realized what was going on. I hit him in the top of the head to get him off . . . .” He

further testified to his realization that he was wearing only his socks, and to his demand

that appellant bring him his clothes. He said he called his brother-in-law for a ride

home, told him about the assault on the way, and went to the hospital.


      The sexual assault nurse examiner testified Hamersley told her and a rape

advocate that he was asleep, woke up naked at appellant’s house and discovered

appellant had his genitals in his mouth.


      Appellant’s female friend testified that on the night of the incident, she was in

another room of appellant’s house, he came into the room, appeared “giddy” and told

her he had taken Hamersley’s pants off because they had “throw-up” on them. She

further testified appellant later told her of his oral contact with Hamersley’s penis, and

that Hamersley “freaked out” when he woke up. Particularly when coupled with

Hamersley’s testimony, the female friend’s testimony supports a rational conclusion that

appellant was aware Hamersley was unconscious at the time of the initial contact



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between his mouth and the other man’s penis, and a rational conclusion appellant also

knew at that point Hamersley was unaware the sexual assault was occurring.            See

Anderson v. State, No. 02-10-00489-CR, 2012 Tex.App. LEXIS 2898 (Tex. App.—Fort

Worth April 12, 2012, no pet.) (mem. op., not designated for publication); Viera v. State,

No. 08-10-00332-CR, 2012 Tex.App. LEXIS 7934, at *11 (Tex. App.—El Paso Sept. 19,

2012, pet. ref’d) (mem. op., not designated for publication) (both finding evidence of

non-consent to sexual assault sufficient). See also Elliott v. State, 858 S.W.2d 478, 485

(Tex. Crim. App. 1993) (discussing evidence supporting finding of lack of consent

“where assent in fact has not been given”); Jennings v. State, No. 07-09-00047-CR,

2010 Tex. App. LEXIS 10241, at *9 (Tex. App.—Amarillo Dec. 29, 2010) (mem. op., not

designated for publication) (collecting cases finding lack of consent when the victim was

asleep at time sexual contact was initiated).


       Appellant points to other circumstantial evidence the jury could have seen as

indicating Hamersley’s consent to oral sex with him. He notes Hamersley’s testimony

that he considered appellant to be “effeminate,” and his acknowledgement that he

invited appellant to his party and voluntarily left the party when appellant and the others

left for a fast food restaurant. Appellant also emphasizes Hamersley’s failure to react in

protest immediately when he realized he was receiving oral sex. He also points to

earlier text and FaceBook messages between the two as indicating a friendly

relationship between the two men.


       In the exercise of its role as fact-finder, the jury was entitled to believe

Hamersley’s testimony that he is not attracted to men, was interested in appellant’s

female friend, and did not consent to appellant’s performance of oral sex on him.

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Recognizing the jury’s role, we defer to its resolution of the conflicting inferences that

might be drawn from the evidence. Jackson, 443 U.S. at 319.


       Viewing the evidence in the light most favorable to the verdict, the jury’s

conclusion Hamersley did not consent to the sexual act by appellant was rational. The

evidence is legally sufficient to support appellant’s conviction. We overrule his sole

issue on appeal and affirm the judgment of the trial court.




                                          James T. Campbell
                                              Justice


Do not publish.




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