                                 MEMORANDUM OPINION
                                        No. 04-11-00008-CR

                                     Antonio COVARRUBIAS,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 399th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2007CR10863
                       Honorable Juanita A. Vasquez-Gardner, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: November 9, 2011

AFFIRMED

           A jury convicted appellant Antonio Covarrubias of the aggravated sexual assault of a

thirteen-year-old girl. The trial court sentenced Covarrubias to thirty years confinement in the

Texas Department of Criminal Justice–Institutional Division. Covarrubias raises a single issue

on appeal, contending the evidence is legally insufficient to support the conviction. We affirm

the trial court’s judgment.
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                                         BACKGROUND

       In 2000, Covarrubias befriended R.T. and his wife T.T. at a youth bible camp. At that

time, Covarrubias resided in Houston, Texas, where he was a youth minister in a Pentecostal

church. R.T. was a youth minister at a Pentecostal church in San Antonio, Texas. The two

families grew close over the following years and established a strong bond based largely on their

shared enthusiasm for Pentecostal ministry.

       In 2005, Covarrubias and his wife began to experience marital problems. He confided in

R.T. that his marriage was strained due to stress brought on by a new baby, financial difficulties,

and divergent personal interests.     R.T. and his wife offered their home and church to

Covarrubias, suggesting he bring his wife and child to San Antonio for a fresh start. Both

families hoped the new setting, coupled with marriage counseling, might salvage the

Covarrubias’ failing marriage.

       The effort to rehabilitate the marriage was unsuccessful and Covarrubias’s wife returned

to Houston with their child after only a month or two in San Antonio. Covarrubias, however,

continued living in R.T.’s home for the remainder of 2005 and most of 2006. R.T. and his wife

testified they trusted Covarrubias and they were unconcerned about his having access to their

home and their young children, including L.T., a thirteen-year-old girl. R.T. and his wife stated

they liked Covarrubias and the children looked up to him as a minister and elder.

       Covarrubias admitted he began to frequent bars, drink alcohol, and initiated sexual

relationships with multiple women.      This behavior was frowned upon by the church and

ultimately prompted R.T. to ask Covarrubias to leave the family’s home. Sometime around

December of 2006, Covarrubias left, moving into an apartment with a woman in San Antonio for

a few months before ultimately returning to his wife and child in Houston.



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       Late on a Sunday night in March of 2007, T.T. went to check on her children. L.T. was

on her bed, crying, and T.T. asked what was wrong. At first, L.T. said she was sad about a good

friend who had recently died. T.T. attempted to console her daughter and then went to her own

room. A few minutes later, T.T. returned to her daughter’s room to see if she was still grieving.

It was then L.T. confessed to her mother she was not crying about her deceased friend, but

because of something Covarrubias had done to her. L.T. told her mother Covarrubias had

sexually assaulted her.    The family notified the San Antonio Police Department the next

morning, and officers arrived shortly thereafter to take their statements.

       Based on the information received from the family, Covarrubias was arrested and

charged with aggravated sexual assault of a child under section 22.021 of the Texas Penal Code.

       At trial, L.T. testified Covarrubias digitally penetrated her vagina without her consent on

two occasions. The first assault occurred in March of 2006 while she and Covarrubias were

watching a movie in the family living room. L.T. testified she had fallen asleep and woke up to

Covarrubias moving two fingers in and out of her vagina. She claimed she was too scared to

move or make a sound and that Covarrubias continued for several minutes before abruptly

leaving the room. L.T. stated she was in shock and did not tell anyone because she was

embarrassed and scared of Covarrubias.

       The second assault occurred in September of 2006 while the two were again on the living

room couch. L.T. testified she was reclined across the couch nursing a sprained ankle when

Covarrubias sat down next to her feet. She said he began to massage her swollen ankle, but then

slowly slid one hand up her leg and into her shorts. L.T. testified Covarrubias inserted two

fingers into her vagina and moved them in and out for about five minutes after which time he




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abruptly stood up and departed the room. L.T. admitted she again failed to tell anyone about the

incident due to fear and embarrassment.

       L.T. then described another encounter with Covarrubias that transpired shortly after he

had moved out of the house in December of 2006. L.T. said Covarrubias came by the house to

pick up some of his mail. She told the jury Covarrubias’s mail was left outside the door, but

Covarrubias rang the doorbell anyway. L.T. told the jury she opened the door and Covarrubias

told her not to tell anyone about what happened because no one would believe her and he did not

want to go back to jail. L.T. testified these statements scared her and she felt threatened by

Covarrubias.

       Covarrubias testified and denied ever having been left alone with L.T. He claimed he

never inappropriately touched or had a sexual or romantic interest in her.

       Other than the testimony of L.T., the State presented no other eyewitnesses to the alleged

sexual assault. However, the State presented testimony from a former baby-sitter who testified

she observed Covarrubias behaving towards L.T. in a manner the sitter believed was

inappropriate. She stated she saw Covarrubias touching L.T. on the waist in an inappropriate

manner. She further stated Covarrubias would, on occasion, seek out L.T.’s company in ways

the sitter felt were improper. The sitter admitted L.T. denied there was anything going on

between her and Covarrubias, but the sitter claimed she did not believe L.T. and continued to

feel something inappropriate had occurred.

       After considering all of the evidence, the jury convicted Covarrubias. After he was

sentenced, Covarrubias perfected this appeal.




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                                                    ANALYSIS

        In a single appellate issue, Covarrubias contends the evidence is insufficient to support

his conviction. First, he notes there was no physical evidence of sexual assault corroborating

L.T.’s testimony. Second, he claims L.T.’s testimony contained inconsistencies. And third, he

alleges there was motive on the part of T.T. and L.T. to fabricate allegations of sexual assault

because T.T. and L.T. were angry with him. 1

                                              Standard of Review

        Texas courts evaluate challenges concerning the sufficiency of evidence supporting a

criminal conviction under the Jackson v. Virginia legal sufficiency standard of review. Brooks v.

State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010); Jackson v. Virginia, 443 U.S. 307 (1979).

The proper question for this court is “[c]onsidering all of the evidence in the light most favorable

to the verdict, was a jury rationally justified in finding guilt beyond a reasonable doubt.” Brooks,

323 S.W.3d at 899. It is strictly the province of the jury “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. The jury is the “sole judge of the weight of the evidence and

may choose to believe all, some, or none of it.” Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.

Crim. App. 1995); see also TEX. CODE CRIM. PROC. ANN. art. 38.04 (West Supp. 2011) (stating

“the jury, in all cases, is the exclusive judge of the facts proved, and of the weight to be given to

the testimony . . . ” except where provided otherwise by law). We must presume that the jury

“resolved the conflicts in favor of the prosecution and therefore defer to that determination.”

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Our duty under this standard is


1
  Covarrubias provides no specific explanation in his brief as to why T.T. and L.T. were angry with him or how that
led to accusations of aggravated sexual assault. He does claim, however, that T.T. made unwanted sexual advances
toward him, which he rejected. We might infer his rejection of T.T.’s advances is the source for his claim that T.T.
had motive to cause L.T. to fabricate allegations of sexual abuse. However, there is no basis in the record for this.

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thus limited to ensuring that “the evidence presented actually supports a conclusion that the

defendant committed the crime that was charged.” Williams v. State, 235 S.W.3d 742, 750 (Tex.

Crim. App. 2007). Only if we find the evidence to be legally insufficient must we reverse the

trial court’s judgment and order an acquittal. Tibbs v. Florida, 457 U.S. 31, 41 (1982).

       To sustain a conviction for aggravated sexual assault of a child, the State must prove

beyond a reasonable doubt that the defendant “intentionally or knowingly cause[d] the

penetration of the anus or sexual organ of a child by any means . . . and . . . the victim is younger

than 14 years of age.” TEX. PENAL CODE ANN. §§ 22.021(a)(1)(B)(i), (a)(2)(B) (West 2011).

The uncorroborated testimony of the victim is sufficient to support a conviction if that victim is

younger than eighteen. TEX. CODE CRIM. PROC. ANN. art. 38.07 (West 2005); Hiatt v. State, 319

S.W.3d 115, 121 (Tex. App.—San Antonio 2010, pet. ref’d).

       We hold L.T.’s testimony was, by itself, sufficient evidence from which the jury could

reasonably find Covarrubias guilty. See id.; see also McDonald v. State, 462 S.W.2d 40, 41

(Tex. Crim. App. 1971) (holding evidence legally sufficient to support aggravated assault

conviction based on victim’s testimony even though testimony was inconsistent); Lane v. State,

174 S.W.3d 376, 387 (Tex. App.—Houston [14th Dist.] 2005, pets. ref’d) (rejecting appellant’s

claim lack of corroborating physical evidence rendered evidence legally insufficient, and holding

testimony of eleven-year-old victim was sufficient to sustain conviction).         L.T. provided a

reasonably detailed description of the date, place, and manner in which she was assaulted. The

jurors were able to observe both L.T. and Covarrubias give testimony on the stand under direct

and cross examination. That the jury chose to believe one over the other was entirely within its

purview. See Jackson, 443 U.S. at 319; Heiselbetz, 906 S.W.2d at 504. It is not for this court to




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second-guess how the jury resolved a conflict in the evidence so long as their inference is

rationally justified. Brooks, 323 S.W.3d at 899; Williams, 235 S.W.3d at 750.

                                         CONCLUSION

       Based on the foregoing, we hold the evidence was legally sufficient to sustain the

conviction. Accordingly, we overrule Covarrubias’s issue and affirm the trial court’s judgment.




                                                Marialyn Barnard, Justice

Do Not Publish




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