Opinion issued July 31, 2018




                                      In The

                                Court of Appeals
                                     For The

                             First District of Texas
                              ————————————
                                NO. 01-17-00641-CR
                              ———————————
                    GUADALUPE ALUISO, JR., Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 300th District Court
                           Brazoria County, Texas
                       Trial Court Case No. 75895-CR


                         MEMORANDUM OPINION

      Guadalupe Aluiso was convicted of four counts of aggravated sexual assault

of a child—his daughter.1 He contends there was insufficient evidence to support

his conviction. We affirm.


1
      TEX. PENAL CODE § 22.021(a)(1)–(2).
                                    Background

      Aluiso’s daughter, pseudonymously referred to as Ann, testified. She said

her parents separated when she was seven years old. After that, she would move

frequently between the homes of her mother, father, grandmother, and other

relatives. When she was with her father, she and her brother would take turns

sleeping in the bed with him and on a small mattress on the floor. When she was in

the second or third grade, she awoke to her father “trying to stick his penis in [her]

vagina.” She froze, not knowing what to do. He told her to go back to sleep.

      Over the next three years, Aluiso touched Ann’s vagina and “butt” with his

penis and mouth. Ann was asked how many times this occurred, and she responded

that it was “too many to count.” She recounted two events with specificity. The

first occurred when she was seven or eight years old. Aluiso called her to his room

and would “try and try” to insert his penis into her vagina but she “kept telling him

it hurt.” Ann testified Aluiso then “just tried putting it in my butt.” She “started

crying at that point” because she felt a “sharp pain.” Afterwards, she was bleeding

from her anus.

      The second occurred when Ann was ten years old. It was the day she was

moving away to live with her aunt out of state. That day, Aluiso touched her

vagina with his mouth.




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      Ann testified that these and similar incidents would occur “whenever he felt

like it” from the time she was seven or eight years old until she was ten and moved

away. During that time, he would touch her breasts, vagina, and butt with his penis

and mouth. Sometimes “white stuff” would come out of his penis and he would

wipe it away with a towel.

      When she was ten years old, Ann moved to live with her aunt in Illinois.

Later, Ann’s mother moved to Illinois, and Ann began living with her. Ann’s

mother thought Ann seemed unusually emotional so she “kept on asking her what

was wrong.” Finally, when Ann was around 12 years old, she told her mother

about the abuse. Ann’s mother took her to the hospital to have her examined and

contacted law enforcement. The medical records presented no evidence of injury,

but it had been over a year since she moved away from Aluiso.

      Ann’s brother was 19 years old at the time of trial. He testified that he lived

with Ann and Aluiso over the periods she alleged to have been abused. He did not

see any inappropriate contact. He testified that he does not know “who to believe”

and wishes he could simply testify that he is “on nobody’s side.”

      Aluiso testified and denied sexually assaulting his daughter.

                          Legal Sufficiency of Evidence

      In his only issue, Aluiso contends there is insufficient evidence to support

his conviction for aggravated sexual assault of a child.


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A.    Standard of review

      We review sufficiency of the evidence using the standard enunciated in

Jackson v. Virginia, 443 U.S. 307, 318 (1979). See Brooks v. State, 323 S.W.3d

893, 898–912 (Tex. Crim. App. 2010). Under that standard, “the relevant question

is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” See Jackson, 443 U.S. at 319; Laster v. State,

275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We consider all reasonable

inferences that may be drawn from the evidence in making our determination,

including all direct and circumstantial evidence. Clayton v. State, 235 S.W.3d 772,

778 (Tex. Crim. App. 2007).

      Evidence is insufficient when (1) no evidence exists that is probative of an

element of the offense in the record, (2) only a modicum of evidence exists that is

probative of an element of the offense, (3) the evidence conclusively establishes a

reasonable doubt, or (4) the alleged acts do not establish the criminal offense

charged. See Jackson, 443 U.S. at 314, 320; Laster, 275 S.W.3d at 518.

      The jury has the exclusive role of evaluating the facts, the credibility of the

witnesses, and the weight a witness’s testimony should be given. Penagraph v.

State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981); Jaggers v. State,

125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The jury


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may choose to believe all, some, or none of a witness’s testimony. See Davis v.

State, 177 S.W.3d 355, 358 (Tex. App.—Houston [1st Dist.] 2005, no pet.). And

the jury alone must reconcile any conflicts in the evidence. Wyatt v. State, 23

S.W.3d 18, 30 (Tex. Crim. App. 2000).

      We defer to the factfinder “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; Clayton, 235 S.W.3d at 778. If there are conflicts in the

evidence, we presume the factfinder resolved the conflicts in favor of the verdict

and defer to that determination, as long as it is rational. See Jackson, 443 U.S. at

326; Penagraph, 623 S.W.2d at 343 (“A jury is entitled to accept one version of

the facts and reject another or reject any of a witness’ testimony.”). Contradictory

evidence does not render evidence supporting the verdict legally insufficient. See

McDonald v. State, 462 S.W.2d 40, 41 (Tex. Crim. App. 1970). But if the evidence

is insufficient, we must reverse and enter an order of acquittal. See Tibbs v.

Florida, 457 U.S. 31, 41 (1982).

B.    Legally sufficient evidence supports conviction

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

child “is younger than 14 years of age” and the person intentionally or knowingly

“causes the penetration of the anus or sexual organ of a child by any means,”

“causes the anus of a child to contact the mouth . . . or sexual organ of another


                                         5
person, including the actor,” or “causes the sexual organ of a child to contact or

penetrate the mouth, anus, or sexual organ of another person, including the actor.”

TEX. PENAL CODE § 22.021(a)(1)–(2). A complainant’s testimony is sufficient to

support a conviction for aggravated sexual assault. TEX. CODE CRIM. PROC. art.

38.07.

         Ann testified, unequivocally, that Aluiso repeatedly pushed his penis into

her vagina and anus and that he contacted his mouth to her vagina. This testimony

alone provides legally sufficient evidence of aggravated sexual assault. Aluiso

contends Ann’s description of the chronology of events surrounding the assaults

conflicts with other evidence, including school records, so that the cumulative

effect of the discrepancies invalidates her testimony. He also points to her

“unremarkable” medical exam and evidence that Ann once chose to live with him

instead of another relative. But any alleged deficiencies in her testimony and

questions as to her credibility do not diminish the legal sufficiency of Ann’s direct

trial testimony on the issue. See Buentello v. State, 512 S.W.3d 508, 516 (Tex.

App.—Houston [1st Dist.] 2016, pet. ref’d).

         Ann’s mother testified that Ann disclosed the abuse when Ann was 12 years

old. Because Ann’s mother was the first person Ann talked to about the abuse,

Ann’s mother qualified as an outcry witness. TEX. CODE CRIM. PROC. art. 38.072.

Outcry testimony can be legally sufficient evidence to support a conviction without


                                          6
corroboration or substantiation. Eubanks v. State, 326 S.W.3d 231, 241 (Tex.

App.—Houston [1st Dist.] 2010, pet. ref”d). Aluiso argues that the evidence

established past deceitful conduct by Ann’s mother, which raised questions as to

her credibility; however, the jury is the sole arbiter of witness credibility.

Penagraph, 623 S.W.2d at 343; Davis, 177 S.W.3d at 358. The outcry testimony

from Ann’s mother provides legally sufficient evidence to support the verdict of

conviction.

      Despite the claimed inconsistencies and issues of credibility, the cumulative

force of the evidence, as resolved by the jury, provides legally sufficient evidence

to support the jury’s verdict of conviction. See Hooper, 214 S.W.3d at 13. Aluiso’s

sole issue is overruled.

                                    Conclusion

      We affirm.



                                               Harvey Brown
                                               Justice

Panel consists of Justices Higley, Brown, and Caughey.

Do not publish. TEX. R. APP. P. 47.2(b).




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