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

          No. 02-19-00170-CR
     ___________________________

    ENRIQUE ANGUIANO, Appellant

                      V.

          THE STATE OF TEXAS


  On Appeal from the 371st District Court
         Tarrant County, Texas
       Trial Court No. 1356100D


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

      Pursuant to a plea bargain, Appellant Enrique Anguiano pleaded guilty to

possession with intent to deliver a controlled substance of four grams or more but

less than two hundred grams, namely cocaine. See Tex. Health & Safety Code Ann.

§ 481.112(d).   In accordance with the terms of the plea bargain, the trial court

sentenced Anguiano to eight years of deferred adjudication community supervision.

The State subsequently filed a petition to proceed to adjudication, alleging that

Anguiano had violated his community-supervision conditions by committing a sexual

assault at a spa where he worked as a massage therapist. Anguiano pleaded not true

to the allegations, and the trial court, after conducting a hearing, found that the

allegations were true and sentenced Anguiano to twenty-five years’ confinement. In

his sole issue, Anguiano argues that the evidence was insufficient to establish that he

committed the alleged sexual assault. We will affirm.

                I. BACKGROUND OF THE SEXUAL ASSAULT

      At the hearing on the State’s petition to proceed to adjudication, the

complainant, J.K., testified that she visited a spa in Colleyville on December 12, 2018.1

J.K. had first visited the spa in June 2018, and she had subsequently visited the spa

approximately once a month leading up to her December visit. J.K. testified that she


      1
        To protect the complainant’s anonymity, we will use initials to refer to her. See
Daggett v. State, 187 S.W.3d 444, 446 n.3 (Tex. Crim. App. 2005); McClendon v. State,
643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).


                                           2
did not have a “regular” massage therapist but that she would use whichever therapist

the spa provided.

      On her December visit, J.K. was led into the massage room by her assigned

massage therapist. J.K. testified that she did not know the name of her assigned

therapist, and she could not recall what he looked like.2 She testified that upon

entering the room, she had a brief conversation with the therapist about changing her

massage package from a bamboo massage to a package that included a Swedish

massage, facial, and body wrap. After that conversation, the therapist left the room so

that J.K. could get situated on the massage table. J.K. then removed her clothes and

lay face down on the massage table with a sheet and blanket covering her body.3 The

therapist then reentered the room and began massaging J.K.’s back. J.K. testified that

the back massage lasted approximately thirty to thirty-five minutes and that it went

“normally.”

      Following the back massage, the therapist told J.K. to turn over so that she was

“face up.” J.K. then turned over, and a towel was placed over her face. The therapist

began massaging J.K.’s shoulders, and he then “put his hands on [her] breast” under

the sheet. J.K. testified that she “stiffened up” following that contact, and then “this


      2
        Although she could not recall what her massage therapist looked like, J.K.
referred to the therapist during the hearing as “he” and “him.”

      J.K. testified that during her previous massages at the spa, she had likewise
      3

been unclothed on the massage table covered by a sheet and blanket.


                                           3
person was on top of [her].” J.K. stated that she did not remember what happened

while the therapist was on top of her, and she did not remember whether she was still

covered by the sheet and blanket when the therapist was on top of her. J.K. testified

that she remembered “warmth in [her] legs” which she believed to be the therapist’s

semen. She also remembered pushing the therapist in an attempt to get him off of

her. She testified that the therapist then left the room, and the worker who was to

perform the facial entered. J.K. told the worker to “call the manger and to call the

police because [she] had been raped.”

      The police were notified, and Officer Nicolas Garcia of the Colleyville Police

Department arrived at the spa. Officer Garcia arrested Anguiano—who had been

identified as the suspect of the sexual assault—and transported him to jail. Officer

Garcia testified that during the transport, Anguiano admitted to having sex with J.K.

but that Anguiano stated that the sex was consensual. According to Officer Garcia:

      [Anguiano] said the sex was consensual; he said that he was massaging
      the victim’s neck while he was on her back over by the blanket; he said
      that the victim began moaning loud. [Anguiano] said that he tried to
      ignore the moans but the victim grabbed his penis through his pants and
      allegedly told [Anguiano], in quotes, “fuck me.” [Anguiano] then said he
      began having consensual sex with the victim and he attempted to stop
      having sex with her when she allegedly told him, [“]Don’t stop,[”] before
      the victim allegedly grabbed him by the penis and reinserted it into
      herself.




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                        II. ADJUDICATION OF GUILT

                              A. Standard of Review

      A trial court’s determination on a motion to adjudicate is reviewable in the

same manner as the determination on a motion to revoke community supervision. See

Tex. Code Crim. Proc. Ann. art. 42A.108(b); Church v. State, No. 02-17-00049-CR,

2018 WL 4183076, at *1 (Tex. App.—Fort Worth Aug. 31, 2018, no pet.) (mem. op.,

not designated for publication). We review an order revoking community supervision

under an abuse-of-discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex.

Crim. App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In a

revocation proceeding, the State must prove by a preponderance of the evidence that

the defendant violated at least one of the terms and conditions of community

supervision.   Bryant v. State, 391 S.W.3d 86, 93 (Tex. Crim. App. 2012); Rickels,

202 S.W.3d at 763–64. The trial court is the sole judge of the witnesses’ credibility

and the weight to be given their testimony, and we review the evidence in the light

most favorable to the trial court’s ruling. Hacker v. State, 389 S.W.3d 860, 865 (Tex.

Crim. App. 2013); Cardona, 665 S.W.2d at 493. If the State fails to meet its burden of

proof, the trial court abuses its discretion by revoking the community supervision.

Cardona, 665 S.W.2d at 493–94.




                                          5
             B. The Evidence is Sufficient to Support a Finding that
                       Anguiano Sexually Assaulted J.K.

      The State alleged in its petition to proceed to adjudication that Anguiano had

committed the new offense of sexual assault.4 A person commits sexual assault if he

intentionally or knowingly causes the penetration of the sexual organ of another

person by any means, without that person’s consent.           Tex. Penal Code Ann.

§22.011(a)(1)(A). The Penal Code defines “consent” as “assent in fact, whether

express or apparent.” Id. § 1.07(a)(11). A sexual assault is without the consent of the

other person if “the actor compels the other person to submit or participate by the

use of physical force, violence, or coercion.” Id. § 22.011(b)(1). The focus of the

offense is “on the actor’s compulsion rather than the victim’s resistance.” Hernandez v.

State, 804 S.W.2d 168, 170 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d).

“There is no requirement that a certain amount of force be used, only that it is used.”

Edoh v. State, 245 S.W.3d 606, 609 (Tex. App.—Houston [1st. Dist.] 2007, no pet.);

Gonzales v. State, 2 S.W.3d 411, 415 (Tex. App.—San Antonio 1999, no pet.).

      In his brief, Anguiano argues that there is insufficient evidence to show that he

penetrated J.K.’s sex organ. Alternatively, Anguiano argues that if he did penetrate

J.K.’s sex organ, the evidence is insufficient to show that he did so without J.K.’s

consent.


      One of Anguiano’s conditions of community supervision was that he not
      4

commit any offense against the laws of Texas.


                                           6
       Here, there was evidence that Anguiano intentionally or knowingly penetrated

J.K.’s sex organ. While J.K. testified that she did not remember what happened when

the therapist was on top of her, and she did not remember whether she was covered

by the sheet and blanket when the he was on top of her, she did describe a warmth

between her legs that she believed to be his semen, and she told the worker who was

to perform the facial that she “had been raped.” Moreover, Officer Garcia testified

that Anguiano admitted to having sex with J.K. Specifically, Officer Garcia testified

that Anguiano told him that Anguiano had been giving J.K. a massage, and that at

J.K.’s prompting, Anguiano “began having consensual sex with [J.K.].” Viewing the

evidence in the light most favorable to the trial court’s ruling, and deferring to the trial

court on questions of the credibility of witnesses and the weight to be given their

testimony, we hold that the trial court did not abuse its discretion by finding that the

State proved by a preponderance of the evidence that Anguiano intentionally or

knowingly penetrated J.K.’s sex organ.        See Hacker, 389 S.W.3d at 865; Cardona,

665 S.W.2d at 493.

       There was also evidence that Anguiano’s penetration of J.K.’s sex organ was

done without her consent. J.K testified that she was lying on her back on a massage

table with a towel covering her face when the therapist touched her breast. She stated

that she stiffened at this contact, and then the therapist was “on top of [her].” She

testified that she pushed the therapist in an attempt to get him off of her. When

pressed during cross-examination as to whether she had really pushed the therapist,

                                             7
J.K. testified that she remembered pushing the therapist in the torso with her hands.

J.K. also stated that she told the spa’s personnel to call the police because she “had

been raped.” She also testified that she did not consent to “this man doing any of

this.” Viewing the evidence in the light most favorable to the trial court’s ruling, and

deferring to the trial court on questions of the credibility of witnesses and the weight

to be given their testimony, we hold that the trial court did not abuse its discretion by

finding that the State proved by a preponderance of the evidence that Anguiano’s

penetration of J.K.’s sex organ was done without her consent, i.e., that he sexually

assaulted J.K., a violation of the conditions of his community supervision.5 See

Hacker, 389 S.W.3d at 865; Cardona, 665 S.W.2d at 493.

      We overrule Anguiano’s sole issue.

                                III. CONCLUSION

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




      5
       Anguiano argues that there is no evidence that he used physical force to
compel J.K. to submit to the sexual assault. We disagree. J.K. testified that the
therapist—Anguiano—got on top of her while she was lying on a massage table with
her face covered by a towel and that she pushed him in an attempt to get him off of
her. That testimony provides some evidence that Anguiano used physical force to
compel J.K. to submit to the sexual assault. See Edoh, 245 S.W.3d at 609 (“There is no
requirement that a certain amount of force be used, only that it is used.”); Gonzales,
2 S.W.3d at 415 (same).


                                           8
                                  /s/ Lee Gabriel

                                  Lee Gabriel
                                  Justice

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

Delivered: January 30, 2020




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