Opinion filed June 2, 2011




                                           In The


   Eleventh Court of Appeals
                                         __________

                                    No. 11-09-00226-CR
                                        __________

                       MATTHEW MARK HESLEP, Appellant

                                              V.

                               STATE OF TEXAS, Appellee


                             On Appeal from the 19th District Court
                                    McLennan County, Texas
                              Trial Court Cause No. 2008-1531-C1


                             MEMORANDUM OPINION
       The jury convicted Matthew Mark Heslep of indecency with a child. The jury assessed
punishment at confinement for a term of twenty years and a $10,000 fine. The trial court
sentenced appellant accordingly. We affirm.
                                          Background
       Appellant was indicted on three counts of aggravated sexual assault of a child (Counts I
through III) and one count of indecency with a child (Count IV). The indictment alleged that the
offenses occurred on or about February 4, 2008. Count I alleged that appellant caused the sexual
organ of L.T. to contact or be penetrated by appellant’s mouth. Count II alleged that appellant
penetrated L.T.’s sexual organ with his nose. Count III alleged that appellant penetrated L.T.’s
sexual organ with his finger. Count IV alleged that appellant engaged in sexual contact with
L.T. by touching her genitals. On February 4, 2008, L.T. was three years old.
       The State abandoned Counts I and III at trial. The jury acquitted appellant of the
remaining aggravated sexual assault (Count II) and convicted him of indecency with a child
(Count IV).
                                                    Issues on Appeal
       Appellant presents two issues for review. In his first issue, he contends that the evidence
is factually insufficient to support his conviction for indecency with a child. In his second issue,
he contends that the trial court erred by instructing the jurors in its punishment charge that they
could not consider sympathy in their deliberations.
                              Sufficiency of the Evidence Standard of Review
       Appellant challenges only the factual sufficiency of the evidence to support his
conviction. We note at the outset of our analysis that the Texas Court of Criminal Appeals has
now held in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), that there is “no
meaningful distinction between the Jackson v. Virginia1 legal-sufficiency standard and the
Clewis2 factual-sufficiency standard”; that the Jackson v. Virginia standard is the “only standard
that a reviewing court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a reasonable doubt”;
and that “[a]ll other cases to the contrary, including Clewis, are overruled.” Brooks, 323 S.W.3d
at 895, 902, 912 (footnotes added). Accordingly, a challenge to the factual sufficiency of the
evidence is no longer viable. We also note that appellant did not have the benefit of the opinion
in Brooks when this case was briefed. We will review appellant’s factual sufficiency challenge
under the legal sufficiency standard set forth in Jackson v. Virginia. Under this standard, we
must review all of the evidence in the light most favorable to the verdict and determine whether
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307; Brooks, 323 S.W.3d at 899.
                                              The Evidence at Trial
       L.T. was four years old at the time of trial. R.T. is L.T.’s father, and B.T. is L.T.’s
mother. In February 2008, R.T., B.T., L.T., and L.T.’s three brothers lived in a house in


       1
        Jackson v. Virginia, 443 U.S. 307 (1979).
       2
        Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).
                                                           2
McLennan County. Appellant, who is L.T.’s uncle, lived with them. Appellant’s friend, Dustin
Nemick, also lived with them.
       On February 3, 2008, R.T., B.T., and their children attended a Super Bowl party at a
relative’s house.   After the party, they went home.       They arrived at their house at about
11:00 p.m. R.T. testified that, at about midnight, L.T. told him that appellant had hurt her “pee-
pee.” R.T. said that he pointed to L.T.’s vaginal area and that L.T. responded, “[Y]es, that’s
what hurt[s].” L.T. told R.T. that appellant “put his nose on it,” “put a lady bug in it, in the
hole,” and “put his nose in the hole” and that “it hurt.” The record shows that L.T. called her
vaginal area her “pee-pee.” L.T. told R.T. that, when appellant did these things to her, R.T. was
at work and B.T. was taking L.T.’s two older brothers to school.
       R.T. told B.T. about L.T.’s outcry. B.T. looked at L.T.’s vaginal area to see if it was red,
but B.T. did not see anything. The next morning, B.T. called the Advocacy Center and then took
L.T. to Hillcrest Baptist Medical Center. Peggi Sheppard, a Sexual Assault Nurse Examiner,
examined L.T. When Sheppard asked L.T. why her parents had brought her to the hospital, L.T.
responded, “Pee-pee hurts. [Appellant] hurt me.” L.T. also told Sheppard that it hurt when she
urinated. During the examination, Sheppard found chapping on the outer edges of L.T.’s labia
majora and redness on the inner aspects of her labia minora. Sheppard did not find any evidence
of acute trauma, such as tearing, scarring, or bleeding.
       Dr. Ann Sims, the medical director of the Advocacy Center, reviewed photographs that
Sheppard took during her examination of L.T. Dr. Sims testified that the pictures did not depict
any tearing or scarring that would indicate major trauma. Dr. Sims said that she saw a little bit
of redness inside and outside L.T.’s vagina. She could not determine what caused the redness.
She characterized “redness” findings as generalized findings that are found “in lots of little
girls.” Dr. Sims said that, for example, redness can be caused by using too much soap, wearing
wet or sweaty clothes, or poor hygiene. She testified that the redness depicted in the photographs
of L.T. was not inconsistent with possibly hundreds of different causes, including L.T.’s
allegations of sexual abuse.
       Dr. Sims explained that no physical evidence of sexual abuse is found in ninety percent
of cases in which a child is not examined within twenty-four hours after the sexual abuse
occurred. She said that vaginal injuries to young girls heal very rapidly. Dr. Sims did not
believe that placing a nose between the labia majora would cause any bleeding or tears.

                                                 3
       The panties that L.T. wore to the sexual assault examination were tested for DNA. Blake
Goertz, the DNA section supervisor with the Department of Public Safety Crime Laboratory in
Waco, testified that he did not find any genetic material in the panties other than that belonging
to L.T. Goertz said that he found no evidence of biological material from appellant.
       On February 4, 2008, after the sexual assault examination, Waco Police Sergeant Scott
Holt and a Child Protective Services caseworker interviewed appellant and Nemick at R.T. and
B.T.’s house. After the interview, appellant and Nemick left the house. On February 5, 2008,
Melody Zuniga, a forensic interviewer at the Advocacy Center, interviewed L.T. Sergeant Holt
watched the interview. Sergeant Holt testified that L.T. did not make any allegations of sexual
abuse to Zuniga during the interview. Sergeant Holt testified that L.T. responded to every
question with either “no” or “I don’t know.” L.T.’s parents were not allowed to be present
during the forensic interview. B.T. understood that L.T. “completely shut down” when she
talked to Zuniga.
       B.T. testified that, on a later date, she heard L.T. tell a friend, “My uncle hurt me.” B.T.
said that she pulled L.T. aside and asked her what happened. L.T. told B.T. that appellant
touched her on her “pee-pee” with his finger and then told her that he loved her.
       R.T. and B.T. saw changes in L.T.’s behavior after her outcry of sexual abuse. R.T.
testified that L.T. became bashful for the first time. Before her outcry, L.T. would run around
the house not wearing any clothes. After her outcry, L.T. no longer ran around the house without
clothes, and she had to have the door closed when she got dressed. She often said, “Boys didn’t
see girls naked.” B.T. testified that, after her outcry, L.T. had frequent nightmares and wanted to
sleep with R.T. and her every night.
       On March 4, 2008, Don Marshall, an investigator with the McLennan County District
Attorney’s Office, and Sergeant Holt interviewed appellant.          Sergeant Holt testified that
appellant did not want to give a written statement. Investigator Marshall began the interview,
and Sergeant Holt watched the interview from outside the room.            Initially, appellant told
Investigator Marshall that he gave L.T. a “raspberry” on her stomach, and appellant denied that
he put his mouth or face anywhere near L.T.’s vaginal area. Later, appellant told Investigator
Marshall that “[i]t could have happened” when discussing whether he put his mouth and his face
near L.T.’s vaginal area. At one point, appellant said that he could not remember whether it
happened. At another point, appellant said, “I’m willing to say it did happen.” Investigator
Marshall then left the room, and Sergeant Holt entered the room and interviewed appellant.
                                                4
       Appellant told Sergeant Holt that, one afternoon, he was at home alone with L.T. and her
younger brother. Appellant said that the children were in a bedroom sleeping. Appellant heard
them wake up from their nap and then went into the bedroom with them. At that time, the
children were jumping and playing on the bed. Appellant told Sergeant Holt that L.T. was only
wearing panties. Appellant said that he jumped on the bed with them and then sat in a chair by a
computer that was in the room. He then looked at pornography on the computer. Appellant told
Sergeant Holt that L.T. came over to the computer. Appellant then picked her up and flipped her
onto the bed. Appellant told Sergeant Holt that he began giving L.T. a raspberry on her stomach
area and that he could not remember anything that happened after that. He could not remember
the “end of the story.” Appellant believed that he had a repressed memory. He thought that his
nose could have come into contact with L.T.’s panty line. Appellant asked Sergeant Holt
whether he believed in “sexual demons.” Sergeant Holt believed that appellant was saying that
he had been taken over or possessed by sexual demons during the incident.
       R.T. and B.T. testified that appellant talked to them about L.T.’s sexual abuse allegations.
In essence, appellant told R.T. and B.T. the same story about a “raspberry” incident that he told
Sergeant Holt.
       L.T. testified at trial. She said that appellant never touched her “pee-pee.”
                                               Analysis
       In Count IV, the State charged appellant with indecency with a child under Section 21.11
of the Penal Code. TEX. PENAL CODE ANN. § 21.11 (Vernon 2011). A person commits the
offense of indecency with a child if he engages in sexual contact with a child who is younger
than seventeen years of age. Id. § 21.11(a)(1). “Sexual contact” includes the act of “any
touching . . . of . . . any part of the genitals of a child” if “committed with the intent to arouse or
gratify the sexual desire of any person.” Id. § 21.11(c)(1). The indictment alleged that appellant
engaged in sexual contact by touching L.T.’s genitals.
       Appellant relies on L.T.’s denials in the forensic interview and her trial testimony that
sexual abuse occurred. Based on these denials and the lack of physical evidence of sexual abuse,
appellant argues that the evidence is insufficient to support his conviction. L.T. told R.T. that
appellant hurt her “pee-pee.” She also told R.T. that appellant put his nose “on it” and “in the
hole.” L.T. told B.T. that appellant touched her “pee-pee” with his finger. A child victim’s
outcry statement alone can be sufficient to sustain a conviction for a sexual offense.
Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991); Chavez v. State, 324 S.W.3d
                                                  5
785, 788 (Tex. App.—Eastland 2010, no pet.). As the sole judge of the credibility of the
witnesses, the jury was free to believe R.T.’s and B.T.’s outcry testimony and to disbelieve
L.T.’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). In addition to
their outcry testimony, R.T. and B.T. testified about the changes in L.T.’s behavior after her
outcry. Those changes in L.T.’s behavior support the conclusion that L.T. had been sexually
abused. Viewing all of the evidence in the light most favorable to the verdict, we conclude that a
rational trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. Therefore, the evidence is sufficient to support appellant’s conviction. Appellant’s first
issue is overruled.
                                                        Jury Instruction
         In his second issue, appellant argues that the jury should have been allowed to consider
sympathy for him when reaching a decision on punishment and that, therefore, the trial court
erred by instructing the jurors in the punishment charge that they could not consider sympathy in
their deliberations. This argument has been rejected in Texas. Wilson v. State, 267 S.W.3d 215,
219 (Tex. App.—Waco 2008, pet. ref’d). A trial court need not allow jurors “to base the
sentencing decision upon the sympathy they feel for the defendant after hearing his mitigating
evidence.” Saffle v. Parks, 494 U.S. 484, 489 (1990). Appellant’s second issue is overruled.
                                                      This Court’s Ruling
         The judgment of the trial court is affirmed.




                                                                                  TERRY McCALL
                                                                                  JUSTICE
June 2, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel3 consists of: Wright, C.J.,
McCall, J., and Hill, J.4




         3
           Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a
successor by the governor.

         4
             John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
                                                                  6
