                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo
                                  ________________________

                                       No. 07-13-00149-CR
                                       No. 07-13-00150-CR
                                  ________________________

                           ERNEST GLENN BENTON, APPELLANT

                                                   V.

                               THE STATE OF TEXAS, APPELLEE



                            On Appeal from the 100th District Court
                                  Collingsworth County, Texas
       Trial Court Nos. 2878, 2879; Honorable Richard Dambold, Presiding by Assignment


                                          December 9, 2014

                                 MEMORANDUM OPINION
                     Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


        Appellant, Ernest Glenn Benton, was tried by a jury and found guilty of

aggravated sexual assault of a child1 (Trial Court Cause No. 2878, Appellate Cause No.


        1
           See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (West Supp. 2014). The indictment alleged
Appellant intentionally or knowingly caused the penetration of the sexual organ of the victim, a child who
was then and there younger than fourteen years of age, by his mouth. An offense under this section is a
felony of the first degree.
07-13-00149-CR) and indecency with a child2 (Trial Court Cause No. 2879, Appellate

Cause No. 07-13-00150-CR), with the punishment range in both offenses being

enhanced by two prior felony convictions.3 The jury found both enhancements to be

true and assessed his sentence in each case at confinement for life. The trial court

ordered the sentences to be served concurrently. By three issues in the aggravated

sexual assault case (07-13-00149-CR), Appellant asserts (1) the trial court erred by

denying his motion for a directed verdict and (2) the evidence was legally and (3)

factually insufficient to establish he caused penetration of the victim’s sexual organ by

his mouth.      By two issues in the indecency with a child case (07-13-00150-CR),

Appellant asserts (1) the evidence is legally and (2) factually insufficient to establish he

engaged in sexual contact by touching the victim’s sexual organ. We affirm the trial

court’s judgments.


                                             BACKGROUND


        The evidence at trial showed that, on April 14, 2012, the victim was eleven years

old and had been sexually abused by her father since she was nine. Late that night, her

father left his girlfriend’s house and drove the victim to Appellant’s house. On the way,

he displayed a television screen depicting a naked man and woman touching each

other. After arriving at Appellant’s house, she played a card game with her father and
        2
          See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011). Count three of an amended indictment
alleged Appellant engaged in sexual contact with the victim, a child under seventeen years of age, by
touching the victim’s genitals. An offense under this section is a felony of the second degree. Id. at (d).
The State dismissed Counts I and II.
        3
           The State filed its Notice of Intent to Seek Enhanced Punishment based upon Appellant’s two
felony convictions for attempt to commit sexual assault in January 1996 and aggravated assault with a
deadly weapon in November 2001. As enhanced, both offenses were punishable by imprisonment for
life, or for any term of not more than 99 years or less than 25 years. See TEX. PENAL CODE ANN. §
12.42(d) (West Supp. 2014).


                                                    2
Appellant, while watching television. In Appellant’s bedroom, a television depicted a

naked man and woman touching each other. Later, the victim became tired and wanted

to go to bed. Her father gave her some “Kool-Aid” to drink. She took a sip and poured

the drink out because it tasted funny. She noticed the liquid came from a bottle labeled

blueberry vodka.


       She went into the bedroom with the television, turned it off and went to bed.

Approximately, thirty minutes later, she awoke to the sound of the television. It had

been turned back on and was showing naked male and female bodies touching each

other. The victim’s pants had been removed. Her father was in front of her touching his

private parts while Appellant touched her private parts with his mouth and used his

tongue. She had baby oil on her back and bottom and Appellant put baby oil on her

legs. A black light in the bedroom was turned on. The victim got up, put her pants back

on and went into the living room. Appellant told her she looked more beautiful when

she was not wearing her clothes. The victim subsequently reported these events to a

school counselor.


       Becky O’Neal, a Sexual Assault Nurse Examiner (SANE), testified the victim

described Appellant putting baby oil down her back and touching her genitalia with his

mouth.       She also testified that the mouth can be used, along with the tongue to

penetrate the female sexual organ and that anything that passes the fat outer lips, the

labia majora, touching the inner lips, the labia minora, however slight, is considered to

be penetration. She noted in her exam that the victim’s sexual organ did not show

trauma but testified that such a finding was not inconsistent with the abuse described by

the child.

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      The victim’s counselor at her elementary school testified that the victim

approached her and described the abuse her father had inflicted upon her. She also

told the counselor that she and her father went to Appellant’s house, she was given

blackberry vodka and was in a room with a black light when Appellant rubbed lotion on

her. She also said Appellant had touched her with his hand. She was embarrassed,

nervous and crying. The counselor called child protective services and the victim’s

mother.


      Deputy Allen K. Riley served the arrest warrant on Appellant. While searching

Appellant’s house, he found playing cards similar to those described by the victim, a

black light and a near empty bottle of baby oil. One wall in the house was covered with

semi-nude photographs of females in various poses.


      After the conclusion of the evidence, the jury found Appellant guilty of the

offenses in both indictments and assessed Appellant’s punishment at confinement for

life. The trial court subsequently issued its judgment in conformance with the jury’s

verdict and this appeal followed.


                                       DISCUSSION


      Appellant contends the trial court erred by denying his motion for directed verdict

on the issue of penetration. In that regard, we treat a point of error or issue complaining

about a trial court’s failure to grant a motion for directed verdict as a challenge to the

legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim.

App. 1996).



                                            4
       Appellant further contends the evidence is both legally and factually insufficient to

support the conviction in each case. In that regard, we note the only standard that a

reviewing court should apply in determining whether the evidence is sufficient to support

each element of a criminal offense the State is required to prove beyond a reasonable

doubt is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 33 S.Ct. 2781, 61

L.Ed.2d 560 (1979). See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).

Accordingly, Appellant’s issues essentially present a single issue, i.e., whether the

evidence is sufficient to support the verdict in each case. Id. at 895.


       Appellant asserts there was insufficient evidence to establish that he penetrated

the victim’s female sex organ with his mouth or tongue or that he engaged in sexual

contact by touching her genitals. Specifically, he contends the testimony of the victim

was “so inconsistent and contradictory that they are unreliable to sustain the conviction

of Appellant.” The State asserts there was sufficient evidence to create a jury issue on

each question and this Court should defer to the jury’s verdict. We agree with the State.

See Steadman v. State, 280 S.W.3d 242, 243-45, 250 (Tex. Crim. App. 2009).


                  STANDARD OF REVIEW—SUFFICIENCY OF THE EVIDENCE


       In determining whether the evidence is sufficient to support a conviction, a

reviewing court must consider all the evidence in a light most favorable to the verdict

and determine, based on that evidence and the reasonable inferences drawn therefrom,

whether a fact finder could have found the essential elements of the crime beyond a

reasonable doubt. Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011) (citing

Jackson, 443 U.S. at 318-19 and Brooks, 323 S.W.3d at 895).               In conducting our


                                             5
review, we do not sit as a thirteenth juror and may not substitute our judgment for that of

the fact finder by re-evaluating the weight and credibility of the evidence. Isassi v.

State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we defer to the fact finder

to fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable

inferences from basic to ultimate facts. Id. We measure the sufficiency of the evidence

by the elements of the offense as defined by a hypothetically correct jury charge. Malik

v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).


                              AGGRAVATED SEXUAL ASSAULT


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

intentionally or knowingly, by any means, causes the penetration of the sexual organ of

a child under seventeen years of age. See TEX. PENAL CODE ANN. § 22.021(a)(1)(b)(i)

(West Supp. 2014). The State may prove penetration by circumstantial evidence, and

the victim need not specifically testify that there was penetration. Villalon v. State, 791

S.W.2d 130, 133 (Tex. Crim. App. 1990). See Murphy v. State, 4 S.W.3d 926, 929

(Tex. App.—Waco 1999, pet. denied). Further, evidence of the slightest penetration is

sufficient to uphold a conviction, so long as it is shown beyond a reasonable doubt.

Luna v. State, 515 S.W.2d 271, 273 (Tex. Crim. App. 1974).


                                 INDECENCY W ITH A CHILD


       A person commits the offense of indecency with a child if, with a child younger

than seventeen years of age he engages in sexual contact. See TEX. PENAL CODE ANN.

§ 21.11(a)(1) (West 2011). For purposes of this section, “sexual contact” includes any



                                             6
touching of a child’s genitalia with the intent to arouse or gratify the sexual desire of any

person. Id. at (c)(1).


                                         ANALYSIS


       In Vernon v. State, the Court of Criminal Appeals explained that “pushing aside

and reaching beneath a natural fold of skin into an area of the body not usually exposed

to view, even in nakedness, is a significant intrusion beyond mere external contact” and

amounts to “penetration” sufficient to sustain a conviction for aggravated sexual assault.

Vernon v. State, 841 S.W.2d 407, 409-10 (Tex. Crim. App. 1992). The court held that

the evidence of the defendant’s “touching” of the complainant was sufficient to show

“penetration” of the complainant’s female sexual organ where the evidence showed that

the contact was “more intrusive than contact with her outer vaginal lips.” Id. at 409-10

(“it is not ungrammatical to describe Appellant’s touching of complainant in this case as

a penetration, so long as contact with the injured part of her anatomy could reasonably

be regarded by ordinary English speakers as more intrusive than contact with her outer

vaginal lips”).


       Here, the victim testified she was undressed when Appellant “touched” her

genitalia with his mouth and used his tongue on her private parts. The SANE nurse

examiner testified the mouth can be used along with the tongue to penetrate the female

sex organ. She further testified that the absence of trauma to the victim’s genitalia was

not inconsistent with the abuse described by the child.         In addition, the jury could

circumstantially infer from Appellant’s use of pornography, vodka, a black light and baby

oil that he intended to and did engage in more than simply touching the outside of her


                                             7
genitalia.   Based upon this evidence, a reasonable juror could find that Appellant’s

mouth contacted with the victim’s labia minora and, per the definition in Vernon, was a

“penetration” of her sexual organ, i.e., Appellant’s mouth and/or tongue reached beyond

the outer layer of skin comprising the external genitalia or labia majora. See Villa v.

State, 417 S.W.3d 455, 462 (Tex. Crim. App. 2013) (a reasonable juror could find

appellant’s testimony that he put cream on the red area outside the child’s vagina

and/or touched the genitals of the child as an admission of penetration).


       In light of this testimony and evidence, we find a reasonable fact finder could

have concluded that Appellant’s mouth and/or tongue penetrated the victim’s sexual

organ and that such touching was done with the intent to arouse or gratify his sexual

desires. Accordingly, we find the evidence sufficient to support the jury’s verdict in each

case and overrule Appellant’s respective issues.           See Villa, 417 S.W.3d at 462;

Steadman, 280 S.W.3d at 243-45, 250.


                                       CONCLUSION


       The trial court’s judgments are affirmed.



                                                   Patrick A. Pirtle
                                                      Justice


Do not publish.




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