      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00296-CR



                                 Genaro Hernandez, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
       NO. D-1-DC-08300474, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted appellant Genaro Hernandez of the offense of aggravated

sexual assault of a child. See Tex. Penal Code Ann. § 22.021 (West Supp. 2009). Punishment was

assessed at life imprisonment. In two points of error, Hernandez asserts that the evidence is legally

and factually insufficient to prove the element of penetration. We will affirm the judgment.


                                         BACKGROUND

               The jury heard evidence that A.F., a fourteen-year-old girl at the time of trial, was

sexually assaulted by Hernandez when A.F. was either three or four years old. A.F. testified that,

at the time of the assault, she lived in an apartment complex with her cousin. A man lived nearby

whom A.F. knew as “the Generator” and “the Candyman.” A.F. identified this man in court as

Hernandez. According to A.F., Hernandez sold the neighborhood children candy from his house.
                On the day in question, A.F. recalled, she went to Hernandez’s house to buy candy.

A.F. testified that when she arrived, Hernandez carried her upstairs to a room, threw her on a bed,

ripped off her shorts, took off his pants, and tried to put his sexual organ in her sexual organ. A.F.

did not see Hernandez’s sexual organ, but she remembered that she “felt it” and that it “hurt[] so

bad.” A.F. also remembered Hernandez telling her to “shut up.” On cross-examination, A.F. was

asked if what she had felt during the incident was “pushing up against the outside of your body

or was it inside your body.” A.F. answered, “It was trying to push in.” When asked whether it went

“into your body,” A.F. testified, “A little, I think. I don’t really remember.” She elaborated, “It was

like pushing on the outside, like trying to go in. . . . Yeah, like that, but then it went in a little bit

more, and then he stopped after that and then I got up.” A.F. recalled that her sexual organ hurt

after the incident and that when she would use the bathroom, “it would burn.” A.F. also remembered

seeing blood in her underwear after the incident.

                Several years later, A.F. went to a clinic to be tested for sexually transmitted diseases.

At the clinic, when A.F. was asked about her sexual history, she reported having sex for the first

time when she was five years old and described the incident with Hernandez. The person who

interviewed A.F. reported A.F.’s outcry to the authorities and a criminal investigation began.

                A.F. was evaluated and examined by Dr. Beth Nauert, a pediatrician with experience

diagnosing sexual abuse in children. Nauert testified that A.F. had a “normal physical examination,”

meaning that she did not find “at that time any injuries, any scarring, or any abnormalities.” Nauert

attributed this finding to the fact that A.F. was “a very large child. . . . She was 5'5" and almost

200 pounds.” According to Nauert, in larger girls, there is a greater distance separating the outside



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of the sexual organ from the inside of the sexual organ, making it more difficult to observe signs

of injury. Nauert also explained other reasons why the examination may have been normal:


       So one of the reasons that an examination can be normal is that we don’t know
       how far any penetration occurred. Another reason could be the period of time that
       has passed since the last penetration. Another reason is that even if you have injuries,
       if you have a hymen that’s broken or you have some skin that is torn or you have
       bleeding, all of that can disappear over a period of time. So the closer to the actual
       event that an examination is performed, the more likely there is to be something to
       see other than normal.


Nauert was also asked what she considers to be penetration of the female sexual organ. She testified,


       Penetration is when something enters something else. So as soon as I go past the first
       edge of the labia majora, I have penetrated the female sexual organ. I can go farther
       down to the labia minora and farther than that down to the vagina, but all of it is the
       female sexual organ.


               The defense called two witnesses. Dr. Aaron Pierce, a licensed professional

counselor and licensed sex offender treatment provider, testified that not all allegations of

sexual abuse are true. Pierce also testified that victims can misidentify their assailants after a

substantial amount of time has passed. Maria de la Luz Muniz-Hernandez, Hernandez’s wife,

testified that, at around the time of the incident, when she had laundered the sheets on the mattress

that was allegedly used during the assault, she had not noticed any strange stains or bloodstains

on the sheets or on the mattress. During cross-examination, a recording of a phone call between

Hernandez and his wife while Hernandez was in jail awaiting trial was played for the jury. In the

call, a portion of which is transcribed in the record, Hernandez and his wife are heard discussing

what she should say in court.

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                The jury found Hernandez guilty as charged, and, following a punishment hearing,

he was sentenced to life imprisonment. This appeal followed.


                                    STANDARD OF REVIEW

                In a legal sufficiency review, we consider whether, after viewing the evidence in

the light most favorable to the verdict, a rational trier of fact could have found the elements of

the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 324 (1979); Clayton

v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). “This standard accounts for the factfinder’s

duty ‘to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.’” Clayton, 235 S.W.3d at 778 (quoting Jackson, 443 U.S. at 319).

It is not necessary that every fact point directly and independently to the defendant’s guilt, but it is

enough if the conclusion is warranted by the combined and cumulative force of all the incriminating

circumstances. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

                In a factual sufficiency review, we consider whether, after viewing the evidence in

a neutral light, a rational trier of fact was justified in finding guilt beyond a reasonable doubt. See

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). A finding of guilt should be set aside

only if the evidence supporting the finding is so weak as to render the finding clearly wrong or

manifestly unjust. See id. at 415; Korell v. State, 253 S.W.3d 405, 412 (Tex. App.—Austin 2008,

pet. ref’d). Therefore, we will not reverse a judgment on a factual sufficiency challenge unless we

can say, with some objective basis in the record, that the great weight and preponderance of the

evidence contradicts the finding of guilt. Watson, 204 S.W.3d at 417.




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                                             ANALYSIS

                A person commits the offense of aggravated sexual assault of a child if he

sexually assaults a child younger than 14 years of age. Tex. Penal Code Ann. § 22.021(a)(1), (2)(B).

In this case, Hernandez was convicted of intentionally or knowingly causing the penetration of A.F.’s

sexual organ. See id. § 22.021(a)(1)(B)(i). On appeal, Hernandez asserts that the evidence is legally

and factually insufficient to prove penetration. Instead, he claims, the evidence tends to show only

that he contacted A.F.’s sexual organ. We disagree.

                This element of the offense is satisfied by proof of any penetration, no matter how

slight. Cowan v. State, 562 S.W.2d 236, 238 (Tex. Crim. App. 1978); Murphy v. State, 4 S.W.3d

926, 929 (Tex. App.—Waco 1999, pet. ref’d). Penetration may be proved by circumstantial

evidence. Villalon v. State, 791 S.W.2d 130, 133-34 (Tex. Crim. App. 1990); Nilsson v. State,

477 S.W.2d 592, 595 (Tex. Crim. App. 1972). Contact with the female sexual organ in a manner

a reasonable person would consider more intrusive than contact with the outer vaginal lips

constitutes penetration. Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). Penetration

of the vaginal canal is not required. See id.

                In this case, A.F. testified that she felt Hernandez’s sexual organ “trying to push”

inside her sexual organ and that Hernandez’s sexual organ “went in a little bit more.” A.F. further

testified that this “hurt[] so bad,” caused a burning sensation in her sexual organ, and that she noticed

blood in her underwear after the incident. Based on A.F.’s testimony, a reasonable jury could infer

that Hernandez had contacted A.F.’s sexual organ in a manner that was more intrusive than

contact with the outer vaginal lips. Viewing this evidence in the light most favorable to the verdict,



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we conclude that the evidence is legally sufficient to prove the element of penetration. See Garcia

v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978) (holding that victim’s testimony, standing

alone, is sufficient evidence of penetration); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.—Dallas

2006, pet. ref’d) (“The testimony of the child victim alone is sufficient to support a conviction for

sexual assault.”).

                  When considering the evidence in a neutral light, we reach the same conclusion

regarding the factual sufficiency of the evidence. We cannot say, with some objective basis in

the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict or

that the verdict is clearly wrong or manifestly unjust. Hernandez places emphasis on Dr. Nauert’s

testimony that her physical exam of A.F. was “normal” and A.F.’s inability to recall the assault in

greater detail. However, Nauert provided several reasons why a normal exam did not necessarily

mean that penetration had not occurred in this case, including A.F.’s weight and the significant

amount of time that had passed since the incident had occurred. It would not have been clearly

wrong or manifestly unjust for the jury to credit Nauert’s explanations for the normal exam. As for

the fact that A.F. was unable to remember the assault in greater detail, it would not have been against

the great weight and preponderance of the evidence for the jury to infer that the assault had

traumatized A.F. and that a lack of clarity and detail in describing the incident was to be expected

in a case in which the alleged assault had occurred many years earlier when A.F. was three or

four years old.

                  We overrule Hernandez’s first and second points of error.




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                                       CONCLUSION

              We affirm the judgment of the district court.




                                            __________________________________________

                                            Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: July 1, 2010

Do Not Publish




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