      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-04-00694-CR



                                    Tony Cervantes, Appellant

                                                   v.

                                   The State of Texas, Appellee




     FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
        NO. CR20,901, HONORABLE EDWARD P. MAGRE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Tony Cervantes was indicted for aggravated sexual assault of a child and

indecency with a child. See Tex. Pen. Code Ann. § 22.021(a)(1) (West Supp. 2005) (aggravated

sexual assault of a child); Tex. Pen. Code Ann. § 21.11(a) (West 2003) (indecency with a child).

At trial, the jury found Cervantes guilty of indecency with a child, but acquitted him of aggravated

sexual assault. Cervantes asserts that the evidence is legally and factually insufficient to support his

conviction. We will affirm the judgment of the district court.



                                          BACKGROUND

               The jury heard the following evidence. C.I., the complainant, was eleven years old

at the time of trial. She was ten on November 8, 2003, when she visited the home of Cervantes’s

sister, Joann Cervantes, in Thorndale. Cervantes and Joann are related to C.I.’s father, who died
when C.I. was an infant. C.I.’s visit occurred because her mother, Ms. Inocencio, wanted C.I. to get

to know her father’s side of the family. Ms. Inocencio and C.I. spent part of the afternoon at Joann’s

home and had dinner there. Ms. Inocencio agreed to allow C.I. to spend the night alone at Joann’s

home. Ms. Inocencio testified that Joann requested the sleep-over, but Joann testified that C.I. asked

to sleep over. Joann and Ms. Inocencio agreed to meet the next day at a store in Round Rock. Ms.

Inocencio left Joann’s home shortly after dinner. Cervantes, who had been drinking, came to Joann’s

home around dusk. C.I., who had been playing outside, greeted Cervantes with a hug. C.I. later

hugged Cervantes from behind as he was sitting at a table and drinking beer.

                C.I. testified that the incident of which she complains occurred while she and

Cervantes were sitting together on the living room couch. The only other adult in the living room

was Joann, who was seated nearby. Over the course of the evening, several other adults had arrived

at Joann’s home, but by the time of the incident all of them had either departed or moved to parts

of the house separated by closed doors from the living room. C.I. testified that the incident began

when Cervantes asked her for a hug. C.I. said that she got up from the couch and gave him a hug,

but that he did not let go immediately, instead rubbing her chest through her clothing. Cervantes

then released C.I., and she sat back on the couch. C.I. said that this pattern of events was repeated

three or four times, with Cervantes asking for a hug, holding C.I. for progressively more invasive

contact, then releasing her. C.I. testified that Cervantes rubbed her chest, both above and beneath

her clothing; touched her genital area, both above and beneath her clothing; and inserted a finger into

her vagina. C.I. said that the insertion hurt, but that she did not protest, cry out, or attempt to leave

during or after the incident. C.I. testified that, during the incident, Cervantes was talking to Joann,




                                                   2
and that she could see Joann, but did not know whether Joann was looking at her. Joann testified

that she did not observe the incident. But on cross-examination, Joann added that she did not know

whether the incident had occurred because her attention had been divided between Cervantes and

the television and that she had left the room for several minutes. Joann said that her young son

Aurelio was also in the room watching television, although C.I. testified that Aurelio was in another

room at the time. Following the incident, Cervantes left to go to a bar. After Cervantes left, Joann,

Aurelio, and C.I. went into Joann’s bedroom to watch a movie. C.I. watched half of the movie, then

went to bed.

               Ms. Inocencio picked C.I. up the next day as had been agreed. C.I. and Ms. Inocencio

spent the rest of the day at Ms. Inocencio’s brother’s home. When they returned home that evening,

C.I. told her mother about the incident. Her mother called the police and hospital, then took C.I. to

the emergency room at Round Rock Hospital. The emergency room doctor took C.I.’s medical

history and examined her for evidence of sexual assault. He found some redness or irritation in her

genital area, but no trauma. Urinalysis suggested a urinary tract infection, so the doctor treated C.I.

with antibiotics, although a later test ruled out a bladder infection. The following morning, C.I. and

her mother gave separate statements to Thorndale police.

               Ms. Inocencio testified that as soon as she picked up C.I. she noticed a difference in

C.I.’s demeanor. She also said that C.I. refused a hug later that afternoon from Ms. Inocencio’s

brother and that since the incident “she doesn’t give her uncles or her grandpa or anybody like that

hugs” since the incident. She said that C.I. has nightmares and screams that someone is coming after

her.




                                                  3
                Herby Vaughn, the Thorndale police sergeant who took statements from C.I. and Ms.

Inocencio, testified that he watched the forensic interviewer speak with C.I. and that C.I.’s statement

to the interviewer was consistent with her earlier statement to him.


                                           DISCUSSION

                In two issues on appeal, Cervantes contends that the evidence is legally and factually

insufficient to support his conviction for indecency with a child.


Standard of review

                When there is a challenge to the legal sufficiency of the evidence to sustain a criminal

conviction, we consider whether a rational trier of fact could have found the essential elements of

the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim.

App. 2005); Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). We review all the

evidence in the light most favorable to the verdict, assume that the trier of fact resolved conflicts in

the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the

verdict. See Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981). It is not necessary that

every fact point directly and independently to the defendant’s guilt; it is enough if the conclusion is

warranted by the combined and cumulative force of all the incriminating circumstances. Johnson

v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). We consider even erroneously admitted

evidence. Id.

                In a factual sufficiency review, we consider all the evidence equally, including the

testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836



                                                   4
S.W.2d 319, 321 (Tex. App.—Austin 1992, no pet.). Due deference must be accorded the

fact-finder’s determinations, particularly those concerning the weight and credibility of the evidence,

and we may disagree with the result only to prevent a manifest injustice. Johnson v. State, 23

S.W.3d 1, 9 (Tex. Crim. App. 2000). We will deem the evidence factually insufficient to sustain the

conviction if the proof of guilt is too weak or the contrary evidence is too strong to support a finding

of guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85; see Johnson, 23 S.W.3d at 11.


Legal sufficiency

                In his first issue, Cervantes asserts that the evidence is legally insufficient to support

his conviction for indecency with a child.

                A person commits the offense of indecency with a child if that person (1) knowingly

or intentionally (2) engages in sexual contact (3) with a child younger than seventeen years of age

(4) who is not the spouse of the accused. Tex. Pen. Code Ann. § 21.11(a)(1); Hill v. State, 852

S.W.2d 769, 771 (Tex. App.—Fort Worth 1993, pet. ref’d). For purposes of this offense, “sexual

contact” includes (1) any touching by a person, including touching through clothing, (2) of the anus,

breast, or any part of the genitals of a child (3) with the intent to arouse and gratify the sexual desire

of any person. Tex. Pen. Code Ann. § 21.11(c). The requisite specific intent to arouse or gratify the

sexual desire of a person can be inferred from conduct, remarks, or all the surrounding

circumstances. Robertson v. State, 871 S.W.2d 701, 705 (Tex. Crim. App. 1993).

                It is undisputed that C.I. was ten years old and not the spouse of Cervantes on

November 8, 2003. See Tex. Pen. Code Ann. § 21.11(a). The only factual dispute is whether the




                                                    5
incident occurred as described by C.I. Cervantes characterizes the evidence against him as entirely

circumstantial, but overlooks C.I.’s testimony. A victim’s uncorroborated description of events is

adequate to establish the elements of indecency with a child. Ware v. State, 62 S.W.3d 344, 349

(Tex. App.—Fort Worth 2001, pet. ref’d). The testimony of a child victim alone is sufficient to

support a conviction for indecency with a child. Perez v. State, 113 S.W.3d 819, 838 (Tex.

App.—Austin 2003, pet. ref’d). Viewed in the light most favorable to the verdict, C.I.’s testimony

established that an incident occurred during her stay at Joann’s house in which Cervantes touched

her breast and genitals. We assume that the jury drew a reasonable inference from the surrounding

circumstances that Cervantes acted with the intent to arouse or gratify his sexual desire. Thus C.I.’s

account of the incident fulfilled the elements of the offense of indecency with a child, and was

legally sufficient evidence for a rational trier of fact to find Cervantes guilty of the offense.

Cervantes’s first issue is overruled.


Factual sufficiency

               In his second issue, Cervantes contends that the evidence is factually insufficient to

support his conviction for indecency with a child. In considering this issue, we consider all the

evidence equally, including the testimony of defense witnesses and the existence of alternative

hypotheses. Orona, 836 S.W.2d at 321. The alternative hypothesis raised by Cervantes at trial was

that C.I. lied about the incident. Cervantes suggested that C.I. did so in order to gain attention. To

support his hypothesis, he cited inconsistencies in C.I.’s testimony and contradictions between

Joann’s testimony and Ms. Inocencio’s testimony. He also argued that it was unlikely that the




                                                  6
incident could have occurred without Joann noticing, or that C.I. would not have cried out or

attempted to escape. He emphasized that C.I. had voluntarily hugged him twice earlier that day.

                The inconsistency in C.I.’s testimony concerned the number of times that Cervantes

asked her for hugs. At trial, she said that he asked five times, while in her earlier statements she had

said that he asked four times. This discrepancy would not prevent a reasonable fact-finder from

determining that C.I. was a credible witness.

                Joann testified that the visit in question was the second visit to her house by C.I. and

Ms. Inocencio. This testimony was corroborated by Vanessa Herrera, who said she had been living

with her boyfriend in Joann’s home from January to November 8, 2003. Joann said that both C.I.

and Ms. Inocencio spent the night during the first visit. She said that C.I. asked to sleep over on the

second visit. Ms. Inocencio, on the other hand, testified that between August and November 8, 2003

she and C.I. “were like going every other weekend up there visiting.” She said that Joann had asked

C.I. to sleep over. C.I. testified that she had not spent the night at Joann’s home before the night of

the incident. None of the facts at issue in this conflicting testimony are material to the offense with

which Cervantes is charged, and the jury was permitted to disbelieve the testimony of Joann and

Vanessa and believe the testimony of C.I. and Ms. Inocencio. Perez, 113 S.W.3d at 838-39.

                Finally, Cervantes did not testify, and thus he did not present any evidence to support

his hypothesis. He presented no evidence to explain why C.I. would seek attention by accusing him,

or to show any other reason why she would fabricate the incident of which she complains.

Therefore, we overrule Cervantes’s second issue.




                                                   7
                                      CONCLUSION

              We have overruled both of Cervantes’s issues. Accordingly, we affirm the trial

court’s judgment.




                                           _________________________________________

                                           Bob Pemberton, Justice

Before Justices B. A. Smith, Patterson and Pemberton

Affirmed

Filed: June 23, 2006

Do Not Publish




                                              8
