                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-13-00476-CR

                                      Joshoa Immanuel PEREZ,
                                              Appellant

                                                 v.

                                         The STATE of Texas,
                                               Appellee

                   From the 19th Judicial District Court, McLennan County, Texas
                                   Trial Court No. 2011-2093-C1
                             Honorable George Allen, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Karen Angelini, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: July 23, 2014

AFFIRMED

           On June 21, 2013, a jury found Appellant Joshoa Immanuel Perez guilty on four counts of

aggravated sexual assault of a child and two counts of indecency with a child. The jury sentenced

Perez to ninety-nine years’ confinement in the Institutional Division of the Texas Department of

Criminal Justice on each charge of aggravated sexual assault and fifteen years’ confinement on

each charge of indecency with a child. The jury did not assess a fine. On appeal, Perez contends

the evidence is insufficient to support two counts of aggravated sexual assault of a child by digital

penetration. We affirm the trial court’s judgment.
                                                                                          04-13-00476-CR


        In his sole issue on appeal, Perez argues the evidence is insufficient to support the

conviction for aggravated sexual assault under two counts because the child only testified as to

one instance of digital penetration. We, therefore, review the sufficiency of the evidence as to

Counts III and IV of the court’s charge.

                                   SUFFICIENCY OF THE EVIDENCE

        Perez alleges the evidence is legally insufficient to prove that he committed two different

offenses of aggravated sexual assault of a child by digital penetration as charged in Counts III and

IV of the indictment. Perez contends the child, C.P., testified that digital penetration only occurred

one time and thus, only the conviction, i.e., Count III, is supported by the evidence. Citing to

Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012), Perez argues his conviction on Count IV

should be remanded for a new punishment hearing for the second degree felony offense of

indecency with a child. Id. at 432 (permitting reformation of conviction to lesser included offense).

A.      Standard of Review

        In reviewing the legal sufficiency of the evidence, an appellate court determines whether,

viewing “all the evidence in the light most favorable to the verdict, any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt.” Hardy v. State, 281

S.W.3d 414, 421 (Tex. Crim. App. 2009); accord Brooks v. State, 323 S.W.3d 893, 899 (Tex.

Crim. App. 2010); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979). We must defer to the

jury’s assessment of the credibility of the witnesses “and the weight to be given their testimony,”

Brooks, 323 S.W.3d at 899, and allow for reasonable inferences from the evidence presented.

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); see also TEX. CODE CRIM. PROC.

ANN. art. 38.04 (West 1979) (stating that “[t]he 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);

Jackson, 442 U.S. at 319 (reiterating it is strictly the province of the jury “fairly to resolve conflicts
                                                   -2-
                                                                                       04-13-00476-CR


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

ultimate facts”). In so doing, an appellate court presumes that the jury “resolved the conflicts in

favor of the prosecution and therefore defer[s] to that determination.” Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

       The key question is whether “the evidence presented actually supports a conclusion that

the defendant committed the crime that was charged.” See Williams, 235 S.W.3d at 750. Only

upon a finding the evidence is legally insufficient will this court reverse the trial court’s judgment

and order an acquittal. See Tibbs v. Florida, 457 U.S. 31, 40–41 (1982). This legal sufficiency

standard applies equally to both direct and circumstantial evidence. Clayton, 235 S.W.3d at 778;

King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000).

B.     Aggravated Sexual Assault of a Child

       In Counts III and IV, Perez was charged and convicted of aggravated sexual assault of a

child under Texas Penal Code section 22.021. TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (West

Supp. 2013) (causing “the penetration of the . . . sexual organ of a child by any means”).

                                            COUNT III
               And it is further presented in and to said Court that the said JOSHOA
       IMMANUEL PEREZ in the County of McLennan and State aforesaid on or about
       the 23rd day of January, A.D. 2001, did then and there intentionally or knowingly
       cause the penetration of the sexual organ of [C.P.], a child who was at the time then
       and there younger than 14 years of age and not the spouse of the Defendant, by the
       Defendant’s finger,

                                           COUNT IV
               And it is further presented in and to said Court that the said JOSHOA
       IMMANUEL PEREZ in the County of McLennan and State aforesaid on or about
       the 21st day of January, A.D. 2006, did then and there intentionally or knowingly
       cause the penetration of the sexual organ of [C.P.], a child who was at the time then
       and there younger than 14 years of age and not the spouse of the Defendant, by the
       Defendant’s finger[.]

“Article 22.021 is a conduct-oriented offense in which the legislature criminalized very specific

conduct of several different types.” Vick v. State, 991 S.W.2d 830, 832 (Tex. Crim. App. 1999);
                                                 -3-
                                                                                     04-13-00476-CR


accord Pizzo v. State, 235 S.W.3d 711, 717 (Tex. Crim. App. 2007). The statute provides that

“each separately described conduct constitutes a separate statutory offense.” Vick, 991 S.W.2d at

833 (discussing TEX. PENAL CODE ANN. § 22.021); accord Gonzales v. State, 304 S.W.3d 838,

847 (Tex. Crim. App. 2010). Additionally, “‘[i]t is well settled that the “on or about” language of

an indictment allows the State to prove a date other than the one alleged in the indictment as long

as the date is anterior to the presentment of the indictment and within the statutory limitation

period.’” Sanchez v. State, 400 S.W.3d 595, 600 (Tex. Crim. App. 2013) (quoting Sledge v. State,

953 S.W.2d 253, 256 (Tex. Crim. App. 1997)).

C.      Analysis

        Because Perez’s complaint is limited to Counts III and IV, our analysis is limited to the

trial testimony related to digital penetration.

        C.P. testified that she remembered waking up with Perez “on top of me.” She explained

that when she was living in the “white house on 24th Street,” she slept in a room with her two

brothers and then Perez came and stayed with them and he also shared the room with C.P. and her

brothers. C.P. further testified that the abuse progressed slowly over time.

        When asked by the prosecutor to describe Perez’s actions, C.P. explained:

        C.P.:       I remember waking up and I felt a hand inside my shorts and me looking
                    over and I seen [Perez] with his hands inside my shorts. . . . Inside my
                    vagina.

As Perez points out, the prosecutor attempted to clarify the allegations:

        State:      So aside from—in the bed, were there other places that he would put
                    his—other places that y’all would be together and he would put his
                    finger inside your vagina?

        C.P.:       No.

        State:      Was it multiple times in the bed on 24th [S]treet?



                                                  -4-
                                                                                     04-13-00476-CR


       C.P.        Except for the times that I would catch him on top of me at night, I had
                   just—the times when I woke with him.

Perez contends the testimony only supports one offense of digital penetration. The State, however,

disagrees.

       The State asserts C.P.’s testimony indicates that it occurred on several occasions, and that

C.P. was distinguishing between the acts of digital penetration and the times when she awoke with

Perez on top of her. As further evidence of this, the State points to the testimony of Dr. Ann

Simms, the physician that examined C.P. and took her oral history.

       Simms:      [C.P.] told me that she had been molested from the time she was seven
                   until she was twelve.
                   ....
                   She said that [Perez] had molested her from the age of seven to the age
                   of twelve.

       State:      Did she say where she was when this happened?

       Simms:      She said that this uncle had been staying with them and that it happened
                   almost every night.

       We remain mindful that the sufficiency of the evidence is not destroyed by contradictions

or conflicts between witnesses’ testimony. Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.—

Houston [14th Dist.] 2000, pet. ref’d); accord Lee v. State, 29 S.W.3d 570, 574 (Tex. App.—

Dallas 2000, no pet.). Instead, we are directed that conflicts in evidence, or inferences therefrom,

are questions of weight and credibility that are left solely for the jury’s determination. Wise v.

State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012); accord Jackson, 443 U.S. at 326. Juries are

permitted to make reasonable inferences from the evidence presented at trial, and circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor. Hooper v. State,

214 S.W.3d 9, 14–15 (Tex. Crim. App. 2007) (concluding circumstantial evidence alone can be

sufficient to establish guilt); see also Wise, 364 S.W.3d at 903.



                                                -5-
                                                                                     04-13-00476-CR


        When confronted with evidence raising conflicting inferences, a reviewing court must

presume “‘the trier of fact resolved any such conflict in favor of the prosecution, and must defer

to that resolution.’” Wise, 364 S.W.3d at 903; Clayton, 235 S.W.3d at 778. On appeal, this court

determines “‘whether the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to the verdict.’”

Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011) (quoting Clayton, 235 S.W.3d at

778).

        After a review of the record, with the appropriate deference to the jury’s verdict, we

conclude a reasonable jury could have found beyond a reasonable doubt the essential elements to

support two distinct offenses of aggravated sexual assault of a child by digital penetration. See

Brooks, 323 S.W.3d at 899; Hardy, 281 S.W.3d at 421. The jury could have reasonably interpreted

C.P.’s testimony that she woke up on numerous occasions with Perez on “top of her” and other

occasions with Perez penetrating her as defined in Counts III and IV.

        Accordingly, we overrule Perez’s sole issue on appeal.

                                           CONCLUSION

        Having concluded the evidence is sufficient to support the jury’s verdict in both Counts III

and IV, we affirm the trial court’s judgment.


                                                  Patricia O. Alvarez, Justice

DO NOT PUBLISH




                                                -6-
