                                   NO. 07-10-00199-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                     APRIL 10, 2012


                            SERGIO VALADEZ, APPELLANT

                                             v.

                          THE STATE OF TEXAS, APPELLEE


            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2009-423,188; HONORABLE JIM BOB DARNELL, JUDGE


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                MEMORANDUM OPINION

       Appellant Sergio Valadez appeals his conviction for the offense of attempted

sexual assault and the resulting sentence of two years of imprisonment. Through one

issue, appellant argues the evidence was insufficient to support his conviction. We will

modify the judgment of the trial court and affirm it as modified.


                                        Background


       Appellant was charged by an indictment that alleged he attempted to cause the

penetration of the female sexual organ of the complainant by his penis, without the
complainant’s consent and that his attempt amounted to more than mere preparation

that tended but failed to effect the commission of the offense intended.1 Appellant plead

not guilty and the cause was tried to a jury.

       Testimony showed that appellant was employed by a cotton gin in Idalou,

Lubbock County, and occupied an apartment in an apartment unit provided for gin

employees. The complainant occupied another of the apartments, with her children and

husband, who also was a gin employee. The complainant testified she did not know

appellant or associate with him, but was aware he was a gin employee and lived in the

apartments. Appellant also had whistled at her, and said what she described as “sick

words” to her. She gave “hey, pretty girl,” and “hey, sexy girl,” as examples. She paid

him no attention.

       The apartments had a laundry room. One evening, during her husband’s shift,

the complainant took laundry to the laundry room. When she came back to remove her

laundry from the dryer, appellant was in the laundry room. He attempted to engage her

in conversation, coming up close behind her. She smelled alcohol and concluded he

was drunk. She pushed him away. As she tried to leave the room with her laundry, he

closed and blocked the door. He then “started grabbing on [her].” As she struggled to

get away from him, appellant “grabbed” at her shirt and the “pajama pants” she was

wearing. He had his hands on her chest, gripping her breasts, and tried to pull her

pants down, pulling them down “a little bit” on one side. She screamed and he let her

leave the room. After she left the room, the complainant turned to see if appellant was


       1
           See Tex. Penal Code Ann. § 22.011(A)(1) (West 2010).

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following her. She told the jury he was “standing outside the laundry room with his

private part out swinging it saying he would be waiting for me.” She returned to her

apartment, watched from the window until she was sure appellant had gone inside his

apartment, and went to tell her husband of the attack.

       An officer testified he was dispatched to investigate, and found the complainant

shaken, her shirt torn, with visible injuries to her chest, and a red handprint on her arm.

She picked appellant’s photograph from a photographic line-up. She also identified

appellant at trial. Photographs in evidence showed her torn shirt and showed scratches

on her chest.

       After the jury heard the evidence, it convicted appellant as charged. Punishment

was assessed by the trial court at two years of imprisonment. This appeal followed.

                                            Analysis

       Through one issue, appellant challenges the sufficiency of the evidence

supporting his conviction. We evaluate the sufficiency of evidence presented in proof of

a criminal conviction under the standard set out by the United States Supreme Court in

Jackson v. Virginia, 443 US. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1970); see also

Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App. 2010). Under this standard, we

defer to "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts." Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 894, 899, 916. Considering all

the evidence in the light most favorable to the verdict, we determine whether the jury



                                                3
was rationally justified in finding guilt beyond a reasonable doubt. Jackson, 443 U.S. at

319; Brooks, 323 S.W.3d at 899.

      As pertinent here, a person commits the offense of sexual assault of an adult

when 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) (West 2010). Also as pertinent here, 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 or violence. Tex. Penal Code Ann. §

22.011(b)(1) (West 2010).

      A person commits criminal attempt if, with specific intent to commit an offense,

he does an act amounting to more than mere preparation that tends but fails to effect

the commission of the offense intended. Tex. Penal Code Ann. § 15.01(a) (West 2010).

Courts have said that "with specific intent to commit an offense" means that the

accused must intend to engage in the conduct or bring about the desired result.

Giddings v. State, 816 S.W.2d 538, 540 (Tex.App.—Dallas 1991, writ ref’d); Walker v.

State, No. 08-10-00317-CR, 2012 Tex.App. LEXIS 200, at * 9 (Tex.App.—El Paso Jan.

11, 2012) (mem. op., not designated for publication); Correas v. State, No. 05-08-

00101-CR, 2009 Tex.App. LEXIS 4006, at * 7 (Tex.App.—Dallas May 29, 2009, pet.

ref’d) (mem. op., not designated for publication). A person acts intentionally “when it is

his conscious objective or desire to engage in conduct or produce a result.” Tex. Penal

Code Ann. § 6.03(a) (West 2010).




                                            4
       Appellant’s challenge to the sufficiency of the evidence presented against him

focuses on that showing his intent to engage in nonconsensual sexual intercourse with

the complainant, that is, to bring about the penetration of her sexual organ with his

penis. Appellant points to the absence of evidence he ever expressed an intention to

perform a sexual act with her.      She testified appellant grabbed and pulled at her,

scratched her and tore her clothing but stopped when she screamed. Appellant also

argues the fact he approached her in a public place indicates he did not intend to

sexually assault her.

       Appellant compares the evidence here with that in Chen v. State, 42 S.W.3d 926

(Tex.Crim.App. 2001), in which the defendant indicated an intention to engage in sexual

activity with a minor by the language of his emails, and by the condoms and lubricating

jelly he brought to his anticipated meeting with the minor. Id. at 927-28. But the issue

in Chen was not the defendant’s specific intent to commit sexual performance by a

child. The defendant admitted his intention to engage in sexual conduct with the minor.

Id. at 928. Chen contended it was legally impossible for him to carry out his intention

because the person he planned to meet did not exist; he unknowingly had been

exchanging emails with an undercover officer. Id.

       The State argues appellant’s contention gives too little weight to the case law

recognizing that individuals who participate in criminal activity most often do not

articulate their unlawful intent, so the intent of the accused is not ordinarily determined

by direct proof but inferred from circumstantial evidence. We agree. The law permits

juries to infer a person’s intent from his acts, words or conduct, taking into account the

circumstances surrounding the acts in which the accused engages. Patrick v. State,
                                            5
906 S.W.2d 481, 487 (Tex.Crim.App. 1995); Sholars v. State, 312 S.W.3d 694, 703

(Tex.App.—Houston [14th Dist.] 2009, pet. ref’d).

      The jury well could have seen the whistles and cat calls appellant directed toward

the complainant as evidence of his romantic interest in her, and his closing the door of

the laundry room, initiating physical contact with her, forcefully grabbing her breasts,

and attempting to pull down her pants, while telling her she was “pretty,” as an attempt

to sexually assault her.   That his intention further involved penile penetration was

sufficiently demonstrated by his exhibition of his penis to the complainant with the words

he would be waiting for her.

      Appellant seeks to avoid the damaging effect of the evidence he exposed his

penis by arguing, in effect, the exposure was too far removed from the other events to

be probative of his intent during their encounter in the laundry room. His effort fails.

The complainant testified without objection to his act of exposure and his words.2 We

see no reason her statement that appellant was standing outside the laundry room

when he exposed himself as she walked away should remove the events from the jury’s

consideration.   The weight to be given the testimony was a matter for the jury’s

determination. Johnson v. State, 23 S.W.3d 1, 14 (Tex.Crim.App. 2000).



      2
          We agree also with the State that if appellant’s complaint actually is that the
evidence concerning exposure of his penis and his statement to the complainant was
improperly admitted, such a complaint is misplaced in a sufficiency review because
even improperly admitted evidence is considered in determining whether the evidence
is sufficient to support a conviction. Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App.
2004); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998); see also Lockhart
v. Nelson, 488 U.S. 33, 41-42, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988).


                                            6
      Viewing the evidence in a light most favorable to the jury's verdict, we find it

permitted rational jurors to conclude appellant’s actions were taken with the specific

intent to engage in penile intercourse with the complainant without her consent, and find

the evidence therefore sufficient to support his conviction.      His appellate issue is

overruled.

      Lastly, we note the judgment includes an order that appellant pay $1771.75 in

court-appointed attorney’s fees.    Because the record does not show appellant is

financially capable of paying attorney’s fees, the trial court erred in ordering

reimbursement in the judgment.          Mayer v. State, 309 S.W.3d 552, 556-57

(Tex.Crim.App. 2010). Accordingly, we modify the judgment to delete any obligation to

pay attorney’s fees in the amount of $1771.75 and, as modified, affirm it.



                                                       James T. Campbell
                                                            Justice




Do not publish.




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