Opinion filed September 11, 2014




                                         In The


          Eleventh Court of Appeals
                                      __________

                                No. 11-13-00170-CR
                                    __________

                 DERRICK J. MCLAUGHLIN, Appellant
                                            V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 142nd District Court
                            Midland County, Texas
                              Cause No. CR40810

                      MEMORANDUM OPINION
      The jury convicted Derrick J. McLaughlin of burglary of a habitation. 1 The
jury assessed Appellant’s punishment at confinement for thirteen years and a fine
of $10,000. Appellant asserts that the evidence was insufficient to support his
conviction. We affirm.




      1
       TEX. PENAL CODE ANN. § 30.02 (West 2011).
                                        I. The Charged Offense
       Appellant was charged by indictment with the offense of burglary of a
habitation.2 The indictment alleged that, on or about August 10, 2012, Appellant
either (1) entered the habitation of the victim, 3 without her consent, with the intent
to commit the felony offense of sexual assault or (2) entered the habitation of the
victim, without her consent, and intentionally and knowingly attempted to commit
and committed the offense of sexual assault.
       A person commits the offense of burglary if he, without the effective consent
of the owner:
              (1) enters a habitation, or a building (or any portion of a
       building) not then open to the public, with intent to commit a felony,
       theft, or an assault; or
             (2) remains concealed, with intent to commit a felony, theft, or
       an assault, in a building or habitation; or
           (3) enters a building or habitation and commits or attempts to
       commit a felony, theft, or an assault.
PENAL § 30.02(a). The offense of burglary is a first-degree felony if the premises
is a habitation and any party to the offense entered the habitation with intent to
commit a felony other than felony theft or committed or attempted to commit a
felony other than felony theft. Id. § 30.02(d).
                                          II. Evidence at Trial
       The victim testified that, on the morning of August 10, 2012, she was asleep
in her house when she heard a male voice call her by name and say, “[W]ake up.”
After she turned over, the victim recognized the man as her neighbor from across
the street, Appellant.

       2
         We note that Appellant was also charged with the lesser included offense of sexual assault: a
charge that the jury did not reach because it found Appellant guilty of the greater offense.
       3
           The victim’s name has been omitted; we, instead, refer to her as the “victim.”


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       Appellant was seated on the edge of the bed, and except for his gold-rimmed
glasses, he was naked. Appellant told the victim that he found the door open and
came inside to check on her. The victim informed Appellant that she did not need
any help and asked him to leave. Appellant did not leave but, instead, got on top
of the victim and straddled her for several minutes.
       Appellant then penetrated the victim’s vagina with his penis and proceeded
to make thrusting movements while the victim attempted to push him off her.
When the victim asked Appellant how his family would feel about his behavior,
Appellant finally stopped and said, “I’m sorry . . . I didn’t mean to - - this was a
mistake. . . . I shouldn’t have done it.” As Appellant dressed, he asked the victim
not to call the police.
       The victim called the police that afternoon. Officer Jordan Pankratz of the
Midland Police Department (MPD) testified that, on August 10, 2012, he was
dispatched to the victim’s house to investigate her sexual assault report. After
Officer Pankratz arrived at the house, the victim identified her assailant as her
neighbor from across the street. The victim could not remember her neighbor’s
name but stated that it started with the letter “D.”
       A sexual assault nurse examiner, Donna Doyle, testified that she performed
a sexual assault examination on the victim on August 10, 2012. Doyle recalled
that the victim told her that Appellant had penetrated her without her consent.
Doyle stated that the results of the victim’s exam showed redness and abrasions on
her labia minora and cervix, which indicated penetration within the three days
preceding the exam. Doyle also noted that she took swabs from the victim’s
vagina and gave the swabs to an MPD officer.
       MPD Detective Gregory Spencer testified that he interviewed Appellant on
August 10, 2012, and on November 5, 2012. A video recording of the interview
conducted on November 5, 2012, was shown to the jury. In the video, Appellant
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denied being in the victim’s house on August 10, 2012, and denied ever having sex
with her.
      A forensic scientist, Amber Miller, testified that she did a biological screen
on the vaginal swabs taken from the victim during her sexual assault examination.
Miller noted that the results of the screen showed sperm in the vaginal swabs.
      David Young, an expert on DNA comparisons, testified that he performed a
DNA analysis on the sperm found on the vaginal swabs. Young explained that the
results of the analysis showed that the sperm contained a DNA profile consistent
with Appellant’s DNA. Young stated, with reasonable certainty, that Appellant
was the source of the DNA found on the vaginal swabs.
                                 III. Issue Presented
      Appellant contends in a single issue that the evidence was legally and
factually insufficient to sustain his conviction for burglary of a habitation.
                               IV. Standard of Review
      We review a sufficiency of the evidence issue, regardless of whether it is
denominated as a legal or a factual sufficiency claim, under the standard set forth
in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—
Eastland 2010, pet. ref’d). Under that standard, we examine all of the evidence in
the light most favorable to the verdict and determine whether, based on that
evidence and any reasonable inferences from it, any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010).
                                     V. Analysis
      Appellant contends that the evidence was legally and factually insufficient to
sustain his conviction for burglary of a habitation.          Paragraph Two of the
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indictment alleged that Appellant committed the offense of burglary of a habitation
by entering the victim’s habitation, without her consent, and attempting to commit
and committing sexual assault. See PENAL § 30.02(a)(3); see also Martinez v.
State, 269 S.W.3d 777, 782–83 (Tex. App.—Austin 2008, no pet.). Sexual assault
is committed when a person intentionally or knowingly causes the penetration of
the sexual organ of another person, without that person’s consent, by any means.
PENAL § 22.011(a)(1)(A); Murphy v. State, 4 S.W.3d 926, 929 (Tex. App.—Waco
1999, pet. ref’d).
      The victim clearly identified Appellant as her assailant. See Garcia v. State,
563 S.W.2d 925, 928 (Tex. Crim. App. 1978) (finding that a victim’s testimony is
sufficient to support a conviction for sexual assault). The victim testified that
Appellant entered her house and that she did not give him consent to enter her
house. The victim also stated that, without her consent, Appellant then penetrated
her vagina with his penis.
      DNA evidence corroborated the victim’s testimony. See Williams v. State,
848 S.W.2d 915, 916–17 (Tex. App.—Texarkana 1993, no pet.) (finding that, in
the case of an alleged sexual assault, the identity of the assailant may be proven by
DNA evidence alone). Analysis performed on the sperm found on the vaginal
swabs taken during the victim’s sexual assault examination showed a DNA profile
consistent with Appellant’s DNA.
      Viewing the evidence in the light most favorable to the verdict, we find that
a rational trier of fact could have found all of the essential elements of the offense
beyond a reasonable doubt and that the evidence was sufficient to support the
jury’s verdict that Appellant committed the offense of burglary of a habitation. We
overrule Appellant’s single issue on appeal.




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                              IV. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                   MIKE WILLSON
                                                   JUSTICE


September 11, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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