AFFIRMED and Opinion Filed October 7, 2019




                                                           S
                                            Court of Appeals
                                                               In The


                                     Fifth District of Texas at Dallas
                                                         No. 05-18-01128-CR

                                 GRACIANI ALEXANDER CANALES, Appellant
                                                  V.
                                      THE STATE OF TEXAS, Appellee

                                  On Appeal from the 265th Judicial District Court
                                               Dallas County, Texas
                                       Trial Court Cause No. F-1434986-R

                                            MEMORANDUM OPINION
                                Before Justices Bridges, Molberg, and Partida-Kipness
                                              Opinion by Justice Bridges
           A jury convicted appellant Graciani Alexander Canales of aggravated sexual assault of a

child under the age of fourteen. The trial court sentenced him to twenty-five years in prison. In a

single issue, appellant challenges the sufficiency of the evidence to support his conviction. We

affirm.

                                                            Background

           When complainant was in preschool and kindergarten, she lived in Texas with her mother,

appellant, two older brothers, and her younger sister.1 Appellant was her stepfather. They lived

in a two-bedroom apartment, and complainant slept in the bedroom with mother and sister. Mother

worked nights leaving appellant in charge of the children. Complainant’s brothers recalled times


   1
       At the time of trial, complainant was thirteen.
when appellant and complainant went to the bedroom alone and shut the door. They remembered

once trying to open the door, but it was locked. They peeked under the door, but something

blocked their view.

           Complainant also testified that appellant sometimes took her to mother’s room, put a

blanket under one door so no one could peek under, and locked it. She described an incident in

which he pulled down his pants, made her lay on the bed, and committed the aggravated sexual

assault as alleged in the indictment.2 He asked her the next day if he hurt her, and she said yes.

She testified to other times he made her sit on his private part and rub herself against him.

           Although her brothers sometimes asked what they were doing in the bedroom, she never

told them because she did not want to get in trouble. Complainant recalled a time when her

brothers opened a second door that led into the bedroom that did not lock. Appellant immediately

got up, told them to leave, and closed the door. She did not know if her brothers saw any of the

sexual activity.

           In 2011, when complainant was in first grade, the family moved to California. Appellant

did not go with them, but he visited a few years later in 2013. Appellant did not engage in any

sexual contact with complainant during his visit.

           Shortly thereafter, complainant told mother appellant “used to touch me in Texas.

[Appellant] used to do things to me.” Complainant did not detail the abuse at that time, but she

provided more information in later conversations the following week.

           Mother contacted authorities in California, and they told her to contact authorities in Irving,

Texas because that is where the incidents occurred. When mother called the Irving police, she

talked to Detective Stephen Lee. She told him about complainant’s allegations against appellant.


      2
        The indictment alleged that appellant “on or about the 1st day of February, 2011 in the County of Dallas, State of Texas, did unlawfully
then and there intentionally and knowingly cause the contact of the female sexual organ of [COMPLAINANT], a child, who was not then the
spouse of the defendant, by an object, to-wit: the sexual organ of defendant, and at the time of the offense, the child was younger than fourteen
years of age.”

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Detective Lee contacted the Ventura County Sherriff’s Department in California to facilitate an

interview with complainant.

       On March 25, 2014, Deputy Matthew Delahuerta conducted the interview in Ventura

County. Complainant, who was then in the fourth grade and nine-years-old, tried her best to tell

him everything she remembered.

       After the interview, complainant was examined by Regina D’Aquilla, a forensic nurse

examiner. She did not find any physical evidence of sexual assault. She also testified complainant

told her appellant put his private into her private.

       The recorded forensic interview was sent to Detective Lee and he reviewed it. Based on

his experience and training, he determined complainant’s outcry was credible. Detective Lee tried

to contact appellant, but it took some time to locate him.

       Appellant was eventually arrested and charged with aggravated sexual assault of a child

younger than fourteen. The jury found him guilty, and the court assessed punishment at twenty-

five years’ confinement. This appeal followed.

                                    Sufficiency of the Evidence

       Appellant argues the evidence is legally insufficient to support his conviction. He does not

challenge any specific element of the offense but rather contends the evidence is legally

insufficient to conclude beyond a reasonable doubt that he committed the crime. He asserts

complainant provided the only direct testimony of the sexual contact; however, because her

statements were inconsistent, she was not credible. He also challenges the lack of physical

evidence supporting the crime and her delayed outcry. Finally, appellant contends the lack of a

complete investigation into complainant’s brother as the potential abuser casts further reasonable

doubt on complainant’s testimony.




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        In determining the sufficiency of the evidence, the reviewing court considers the evidence

in the light most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Acosta v. State, 429 S.W.3d

621, 624–25 (Tex. Crim. App. 2014). The jury is the sole judge of credibility and weight to attach

to witness testimony. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

        A person commits aggravated sexual assault of a child if a person intentionally or

knowingly causes the penetration of the female organ of a child by any means, and the child is

younger than fourteen years of age. See TEX. PENAL CODE ANN. § 22.021(a)(1). The testimony

of a child victim alone is sufficient to support a conviction for sexual assault of a child. See TEX.

CODE CRIM. PROC. ANN. art. 38.07(a); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.—Dallas 2006,

pet. ref’d).

        A rational jury could have found the essential elements of the crime beyond a reasonable

doubt. Complainant’s testimony supports the charge in the indictment, which tracked the statutory

language of the penal code. See TEX. PENAL CODE ANN. § 22.021(a)(1). Her testimony alone was

sufficient to support appellant’s conviction. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a); Lee,

186 S.W.3d at 655. Her description of what happened did not need to be precise, and she is not

expected to express herself at the same level of sophistication as an adult. See Soto v. State, 267

S.W.3d 327, 332 (Tex. App.—Corpus Christi 2008, no pet.). “As long as a child communicates

to the factfinder that the touching occurred on a part of the body within the definition of the statute,

the evidence is sufficient.” Jones v. State, 428 S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.]

2014, no pet.).

        The jury also watched the forensic interview and heard testimony from Deputy Delahuerta.

He described complainant as shy, soft-spoken, and reluctant to speak. She provided information

about the abuse but could not give specific dates or times, “which is understandable for a child of

                                                 –4–
her age.” He testified she identified appellant as the abuser and never mentioned anyone else as a

possible suspect. When she described what happened to her, she became very emotional and

started crying. He testified complainant provided an age appropriate narrative of the events. Her

knowledge of sexual activity was not normal for that of a nine-year-old unless she had actually

experienced it. To the extent some details from her original forensic interview in California

differed from her trial testimony, the jury, when faced with the conflicting evidence, was free to

resolve conflicts in favor of the State. See Bargas v. State, 252 S.W.3d 876, 888 (Tex. App.—

Houston [14th Dist.] 2008, no pet.) (jury has ultimate authority to weigh credibility of witness

testimony).

       To the extent appellant challenges the lack of forensic evidence and complainant’s delayed

outcry, neither argument has merit. Physical evidence is not required to establish a sexual assault

occurred. Id. Moreover, the jury heard testimony from the forensic nurse examiner that it is “very

uncommon” to document any physical injuries from the sexual assault of young victims because

they often do not report the abuse immediately, any injury to the vagina tends to heal quickly and

completely, and often the abuse involves touching and not forceful penetration.

       Detective Lee explained children often do not report sexual abuse immediately. A delayed

outcry is simply one factor the jury can consider in assessing complainant’s credibility and making

its determination. See, e.g., Hunter v. State, No. 14-10-00468-CR, 2011 WL 1365003, at *4 (Tex.

App.—Houston [14th Dist.] Apr. 12, 2011, no pet.) (mem. op., not designated for publication)

(deferring to jury’s determination of victim’s credibility in light of five-year delay in outcry).

Complainant told the jury she did not tell anyone about the abuse because she was afraid. The jury

weighed this evidence and found in favor of the State.

       Finally, we do not review the sufficiency of the evidence of the police investigation.

Rather, we review the evidence presented at trial. See Smith v. State, No. 05-18-00491-CR, 2019

                                               –5–
WL 1615353, at *7 (Tex. App.—Dallas Apr. 15, 2019, pet. ref’d) (mem. op., not designated for

publication). The jury heard that CPS investigated the family after an anonymous phone caller

alleged an older brother engaged in inappropriate activity with complainant. The investigation

was subsequently closed. Again, such evidence was for the jury to consider and weigh. Jackson,

443 U.S. at 319.

       Our duty is to ensure the evidence presented supports a conclusion that appellant

committed aggravated sexual assault of a child. The record contains such evidence and “was not

a determination so outrageous that no rational trier of fact could agree.” Smith, 2019 WL 1615353,

at *7 (quoting Wirth v. State, 361 S.W.3d 694, 698 (Tex. Crim. App. 2012)).

       Accordingly, we overrule appellant’s sole issue.

                                           Conclusion

       The judgment of the trial court is affirmed.




                                                  /David L. Bridges/
                                                  DAVID L. BRIDGES
                                                  JUSTICE



Do Not Publish
TEX. R. APP. P. 47
181128F.U05




                                               –6–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

 GRACIANI ALEXANDER CANALES,                      On Appeal from the 265th Judicial District
 Appellant                                        Court, Dallas County, Texas
                                                  Trial Court Cause No. F-1434986-R.
 No. 05-18-01128-CR       V.                      Opinion delivered by Justice Bridges.
                                                  Justices Molberg and Partida-Kipness
 THE STATE OF TEXAS, Appellee                     participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered October 7, 2019




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