                                   In The
                             Court of Appeals
               Sixth Appellate District of Texas at Texarkana


                                      No. 06-15-00053-CR



                            MIKEL EUGENE HALL, JR., Appellant

                                               V.

                              THE STATE OF TEXAS, Appellee



                             On Appeal from the 5th District Court
                                      Cass County, Texas
                                Trial Court No. 2013-F-00107




                        Before Morriss, C.J., Moseley and Carter*, JJ.
                        Memorandum Opinion by Chief Justice Morriss



______________________________________
*Jack Carter, Justice, Retired, Sitting by Assignment
                                         MEMORANDUM OPINION
            Mikel Eugene Hall, Jr., was convicted by a Cass County jury of sexually assaulting a child,

Olivia.1 See TEX. PENAL CODE ANN. § 22.011(a)(2)(A) (West 2011). Hall appeals, claiming the

evidence was legally insufficient to establish that he digitally penetrated the child’s sexual organ.

While the direct evidence from Olivia is arguable, there is other evidence of vaginal penetration,

which we find sufficient. Therefore, we affirm the trial court’s judgment.2

            In evaluating legal sufficiency, we review all the evidence in the light most favorable to

the trial court’s judgment to determine whether any rational jury could have found the essential

elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305

S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). We examine legal sufficiency under

the direction of the Brooks opinion, while giving deference to the responsibility of the jury “to

fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing

Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

            Legal sufficiency of the evidence is measured by the elements of the offense as defined by

a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

The “hypothetically correct” jury 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


1
    We use a pseudonym to protect the minor complainant’s privacy.
2
    Hall was also indicted and convicted for indecency with a child; he does not challenge that conviction.

                                                             2
the State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Id. at 240.

       Hall argues that, because Olivia failed to directly testify that Hall penetrated her sexual

organ with his finger, there is no evidence of such penetration. Olivia described Hall’s abuse

starting when she was about seven years old, when he and Olivia’s mother still lived together.

Olivia said Hall made her take off her clothes. Olivia said Hall would touch her “[i]n the breast

and the vaginal area.” In support of his appellate argument, he points to the following excerpt

from Olivia’s testimony:

              [The State]: And what exactly did he do? Did he touch you with one
       hand or both hands?

               [Olivia]:      I don’t remember.

              [The State]: Okay. Do you remember what he did when he touch[ed]
       your vaginal area? Did he use his hand or his fingers or something else?

               [Olivia]:      His fingers.

               [The State]:   Okay. Did he use one finger, two fingers, or --

               [Olivia]:      I don’t know.

               [The State]: You don’t remember, okay. Do you remember if he inserted
       his fingers inside you?

               [Olivia]:      Yes, ma’am.

               [The State]: Yes, okay. Now, did that happen more than one time -- did
       it happen more than that at that old house in Hughes Springs?

               [Olivia]:      Yes, ma’am.



                                                3
Hall argues that, other than agreeing with the State’s question of whether she “remember[ed] if he

inserted his fingers,” Olivia never directly said he penetrated her sexual organ with his finger.

Therefore, urges Hall, there is no evidence of digital penetration.

            We do not agree with Hall’s limitation of the scope of the record. He lodged no objection

to the State’s questioning of Olivia or the form of the State’s question, “Do you remember if he

inserted his fingers inside you?” We recognize Hall’s point that the question, as posed, considered

with Olivia’s affirmative answer, could be understood as Olivia’s indication that she remembered

whether Hall inserted his fingers inside her vagina while stopping short of actually saying that he

did in fact penetrate her. This arguable ambiguity, combined with Olivia’s statements that Hall

touched her around her breasts and vaginal area, does raise a question regarding direct evidence of

digital penetration.

            But Hall would finesse the testimony of Melissa Davison, a forensic interviewer, that

Olivia described to Davison Hall’s abuses over the years.3 Davison testified that Olivia told her

Hall put his fingers inside Olivia’s vagina. This is evidence supporting the State’s allegations.

Hall only mentions this testimony and points to the absence of medical testimony, such as from a

sexual assault nurse examiner, in his argument that there is no evidence to prove penetration.

Whether Olivia’s testimony was sufficient to support a reasonable inference4 that Hall digitally

penetrated her vagina, Davison’s testimony was sufficient to prove the allegation.5


3
Davison testified under the provisions of Article 38.072 of the Texas Code of Criminal Procedure. See TEX. CODE
CRIM. PROC. ANN. art. 38.072 (West Supp. 2014).
4
    See Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007).
5
    Additionally, it was for the jury to weigh the credibility of the witnesses. See id. at 13.
                                                               4
      We affirm the trial court’s judgment.




                                              Josh R. Morriss, III
                                              Chief Justice

Date Submitted:      October 30, 2015
Date Decided:        November 2, 2015

Do Not Publish




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