                            NUMBER 13-09-127-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

REYMUNDO CASTILLO AKA JOKER,                                             Appellant,

                                         v.

THE STATE OF TEXAS,                                                      Appellee.


                   On appeal from the 156th District Court
                          of Bee County, Texas.


                        MEMORANDUM OPINION
                Before Justices Garza, Benavides, and Vela
                  Memorandum Opinion by Justice Vela
      A jury convicted appellant, Reymundo Castillo aka Joker, of three counts of

aggravated sexual assault of a child (counts one, two, and four), see TEX. PENAL CODE

ANN. § 22.021(a)(1)(B), (2)(B) (Vernon Supp. 2010), and two counts of indecency with a

child by exposure (counts three and five). See id. § 21.11(a)(2)(A). The trial court
assessed punishment at sixty-five years‘ imprisonment for each count of aggravated

sexual assault and ten years‘ imprisonment for each count of indecency with a child.

The trial court assessed a $1,500 fine for count one, ordered the sentence for count two to

run consecutively with the sentence for count one, and ordered the sentences for counts

three, four, and five to run concurrently.

           In four issues, Castillo challenges the legal and factual sufficiency of the evidence

to support his convictions. We affirm.

                                        I. FACTUAL BACKGROUND

A. State’s Evidence

          In the evening of August 14, 2007, six-year-old V.V. arrived at ―Beeville hospital‖

with her mother1 and stepfather, Reymundo Castillo. Alicia Cowley, a sexual assault

nurse examiner, testified V.V. was crying and had painful urination. She stated that,

because ―[i]t looked like [V.V. had] herpes‖ and would need ―significant treatment,‖ she

was taken by ambulance to Driscoll Children‘s Hospital that evening.

          The next day, Nancy Harper, M.D., a pediatrician at Driscoll Children‘s Hospital

who had specialty training in child abuse and neglect, examined V.V. and stated that she

―had extensive ulceration. She had these blisters and ulcers on her labia pretty much

from the top of her private down along the side to the bottom on the right.‖ She stated

that tests showed that V.V. had two sexually transmitted diseases (STDs)—herpes and

chlamydia.

          During Dr. Harper‘s direct-examination, the prosecutor introduced State‘s exhibit

3, which is a document showing that on January 9, 2008, Castillo visited a clinic in
1
    V.V.‘s mother did not testify, and she will remain anonymous.
                                                      2
Beeville and that he tested ―negative for chlamydia.‖ When the prosecutor, in reference

to State‘s exhibit 3, asked Dr. Harper, ―So does that mean that he [Castillo] couldn‘t have

had sex with [V.V.]?‖, she said, ―No. It just means he could have had treatment‖ for

chlamydia.

       On cross-examination, Dr. Harper testified she believed V.V. ―was sexually

abused‖ and said it was ―[p]ossible‖ Castillo never had chlamydia. She also testified that

V.V.‘s sexual-assault exam was normal, except that she had chlamydia and herpes.

She said that herpes is ―very rarely not‖ transmitted sexually. She also stated that

Castillo‘s test for herpes was ―negative‖; however, she did not know if he had a ―blood test

or a swab‖ to test for herpes. She said that ―[b]lood tests for herpes are different

because they are notoriously not helpful.‖

       V.V., who was eight years old at the time of trial, testified that while living in

Beeville, she shared a room with her two sisters and that her mother stayed in another

room with ―Rey,‖ whom V.V. identified as appellant. During the State‘s case-in-chief, the

prosecutor showed V.V. a boy doll and a girl doll. The record reflects that V.V. identified

the ―male sexual organ‖ of the boy doll as the ―front part‖ and that she identified ―the front

private part‖ and the ―back private part‖ of the girl doll.

       V.V. testified that on more than one occasion, Castillo came into her room and

removed her nightgown and panties. He then took off his pants, and she saw his ―private

part.‖ When asked by the prosecutor if his private part was ―little‖ or ―big,‖ she said, ―Big.‖

She testified Castillo would then ―get on top of me.‖ When the prosecutor asked her,

―And when he got on top of you his private part was out of his pants? Was it out of his


                                               3
underwear?‖, she said, ―Yes.‖ She said she ―was trying to get away‖ from him, but he

would put one hand on her mouth and use his other hand to hold her hands. When the

prosecutor asked her, ―And . . . what did you do when he was finished? Did you ever go

to the bathroom?‖, she said, ―Yes‖ and testified that she saw ―[w]hite spots.‖ After saying

this, V.V. said, ―And then he [Castillo] would tell me to go over there in the living room.‖

She stated that while in the living room, ―[h]e would want me to go over there by him and

to put my mouth on his front part.‖ When the prosecutor asked her, ―So what would he

make you do?‖, she said, ―He would put my mouth on his front part.‖                  Next, the

prosecutor asked her, ―And . . . did you look . . . at his front part?‖ To this, she said, ―Yes‖

and stated that ―[i]t had white things on it.‖ When asked ―[l]ike what kind of white things,‖

she said, ―Like sores.‖ When the prosecutor asked her, ―When he would make you put

your mouth on his private where did his private go? Was it just right on the lips or was it

inside the mouth?‖, she said, ―Inside of my mouth.‖ When the prosecutor asked her, ―Did

you ever go to the bathroom after he put his private in your mouth?‖, she answered, ―Yes‖

and said that she ―checked‖ her ―front part, and it was starting to bleed.‖

       The prosecutor also asked V.V., ―Do you remember anything about him [Castillo]

using his fingers?‖ To this, she said, ―Yes‖ and stated that ―[h]e put them in my back

part.‖ She said he did this to her while she was ―standing up.‖ V.V. testified she was

scared of Castillo ―[b]ecause he said if I ever told anybody he would spank me.‖ She

testified that Castillo ―would hit me with the belt‖ on her ―bottom.‖

       On cross-examination, when defense counsel asked V.V., ―You use[d] to get those

rashes all the time, didn‘t you?‖, she said, ―Yes.‖ Next, defense counsel asked her,


                                               4
―Before even Rey [Castillo] was around, right?‖ To this, she said, ―Yes.‖ When defense

counsel asked her, ―So is it possible that this happened somewhere else and it wasn‘t

Rey at all?‖, she said, ―It was Rey all.‖ Next, defense counsel asked her, ―It was Rey all.

Are you sure? Because this is very important.‖ In response, she said, ―Yes.‖

       On re-direct-examination, when the prosecutor asked V.V., ―And so the very first

time that you got these sores was when you went to the hospital, right?‖ Your mom took

you to the hospital when you got those?‖, she said, ―Yes.‖ Next, the prosecutor asked

her, ―But then they came back after that first time?‖ To this, she said, ―Yes.‖

       Monica Pena, a family based safety services worker for the Texas Department of

Family and Protective Services, testified she wanted Castillo to undergo a test for STDs.

However, he did not have the test when she asked him to take it. Instead, he waited until

the ―beginning‖ of 2008 to take the test.

       Stephanie Diaz, an investigator supervisor with Child Protective Services, testified

that V.V. is not married to Castillo.       On cross-examination, Diaz testified that CPS

requested that V.V. and Castillo undergo testing for STDs. In January 2008, Castillo was

tested for chlamydia and gonorrhea, and the results were negative. She stated CPS did

not have Castillo tested for herpes    She said that, ―my understanding is that it‘s difficult

to detect herpes in blood work and that you would have to have an actual outbreak‖ of

herpes in order to test for that disease.

B. Defense Evidence

       Castillo‘s mother, Ninfa Castillo, testified that at some point, Castillo, V.V.‘s

mother, and V.V.‘s three daughters, including V.V., lived with her. She did not remember


                                               5
V.V. being sad, upset, or crying. She said that V.V. and her two sisters did not appear to

be afraid of Castillo.

       Melissa Rosales testified she knew Castillo for fifteen years and that he is the

father of her two sons. She had never been infected with any type of STD and said that

their two sons had never been infected with either chlamydia or herpes.

       Castillo testified he met V.V.‘s mother in December 2005 and that he ―started really

seeing‖ V.V.‘s mother in early January 2006. During that month, he and V.V.‘s mother

began living together in a Beeville apartment with her three daughters, including V.V. He

married V.V.‘s mother in March 2006, and at some point, he, V.V.‘s mother, and her three

daughters moved into a rental house in Beeville. Later, they moved in with Castillo‘s

parents.

       Castillo testified he never inappropriately touched either V.V. or her two sisters.

He denied having sexual intercourse with either V.V. or her two sisters. He also denied

that he had tried to make one of these girls perform oral sex on him, and he denied that he

―stuck [his] finger inside one of their rear ends.‖ He testified that he did not have herpes

or chlamydia.

       On cross-examination, Castillo testified he had ―a rash twice‖ and explained that, ―I

got some piercings on my privates, and where they did the incision is where the rash was

at.‖ He said he ―never had oozing sores on [his] penis‖ and said that he ―never took

antibiotics.‖   When the prosecutor asked him, ―Rey, you don‘t have a very good

reputation, do you?‖, he said, ―No, I sure don‘t.‖




                                             6
                                       II. DISCUSSION

A. Aggravated Sexual Assault Of A Child

       In issue one, Castillo argues the evidence is legally insufficient to support his three

convictions for aggravated sexual assault of a child (counts one, two, and four). In issue

two, he argues the evidence is factually insufficient to support these convictions. We

review his sufficiency complaints under only the standard set out in Jackson v. Virginia,

443 U.S. 307, 319 (1979). See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App.

2010) (overruling Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996)).

       1. Standard Of Review

       ―When conducting a legal sufficiency review, a court must ask whether ‗any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt‘—not whether ‗it believes that the evidence at trial established guilt

beyond a reasonable doubt.‘‖ Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.

2009) (quoting Jackson, 443 U.S. at 318-19) (emphasis in original). ―In doing so, we

assess all of the evidence ‗in the light most favorable to the prosecution.‘‖ Id. (quoting

Jackson, 443 U.S. at 319). ―After giving proper deference to the fact finder‘s role, we will

uphold the verdict unless a rational fact finder must have had reasonable doubt as to any

essential element.‖ Id. at 518. We must presume that the fact finder resolved any

conflicting inferences in favor of the prosecution and defer to that resolution. Jackson,

443 U.S. at 326.

       Our review of a legal sufficiency challenge should be examined under the

principles of review for a hypothetically correct jury charge. Grotti v. State, 273 S.W.3d


                                              7
273, 280-81 (Tex. Crim. App. 2008). ―‗Such a charge [is] one that accurately sets out the

law, is authorized by the indictment, does not unnecessarily increase the State‘s burden

of proof, or unnecessarily restrict the State‘s theories of liability, and adequately

describes the particular offense for which the defendant was tried.‘‖ Villarreal v. State,

286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (quoting Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)).

       2. Applicable Law

       Section 22.021(a) of the penal code provides, in relevant part, that a person

commits the offense of aggravated sexual assault of a child if the person:               (B)

intentionally or knowingly:

       (i)       causes the penetration of the anus or sexual organ of a child by any
                 means;

       (ii)      causes the penetration of the mouth of a child by the sexual organ of
                 the actor;

       (iii)     causes the sexual organ of a child to contact or penetrate the mouth,
                 anus, or sexual organ of another person, including the actor;

       (iv)      causes the anus of a child to contact the mouth, anus, or sexual
                 organ of another person, including the actor; or

       (v)       causes the mouth of a child to contact the anus or sexual organ of
                 another person, including the actor; and

       (2) if:

                 ***
       (B)       the victim is younger than 14 years of age. . . .


TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i)-(v), (2)(B). A child victim‘s testimony alone is

sufficient to support a conviction for aggravated sexual assault of a child. Perez v. State,

                                                8
113 S.W.3d 819, 838 (Tex. App.–Austin 2003, pet. ref'd); see TEX. CODE CRIM. PROC.

ANN. art. 38.07 (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.–Dallas

2002, pet. ref'd).

       To prove count one as set forth in the charge, the State was required to establish

beyond a reasonable doubt that Castillo ―intentionally or knowingly cause[d] the

penetration of the mouth of [V.V.], a child who was then and there younger than 14 years

of age and not the spouse of the defendant, by the defendant‘s sexual organ . . . .‖ V.V.

testified that after Castillo got off of her, he would tell her to go into the living room. While

V.V. and Castillo were in the living room, he would put his ―front part‖ inside of her mouth.

       To prove count two as set forth in the charge, the State was required to establish

beyond a reasonable doubt that Castillo ―intentionally or knowingly cause[d] the

penetration of the anus of [V.V.], a child who was then and there younger than 14 years of

age and not the spouse of the defendant, by defendant‘s finger, . . . .‖ When the

prosecutor asked V.V., ―Do you remember anything about him [Castillo] using his

fingers?‖, she said, ―Yes.‖ She testified that when she was standing up, ―[h]e put them in

my back part.‖

       To prove count four as set forth in the charge, the State was required to establish

beyond a reasonable doubt that Castillo ―intentionally or knowingly cause[d] the

penetration of the sexual organ of [V.V.], a child who was then and there younger than 14

years of age and not the spouse of the defendant, by defendant‘s sexual organ, . . . .‖

V.V. testified that after Castillo removed her nightgown and panties, he would take off his

pants. After removing his pants, he would ―get on top of‖ her. When the prosecutor


                                               9
asked her, ―And when he got on top of you his private part was out of his pants? Was it

out of his underwear?‖, she said, ―Yes.‖ Even though V.V. did not testify 2 that Castillo

penetrated her sexual organ with his sexual organ, she testified that after he got off of her,

he engaged in oral sex with her. She said that after he put his ―private‖ in her mouth, she

―checked‖ her ―front part, and it was starting to bleed.‖ In addition, she testified his ―front

part‖ had ―white things on it.‖ When the prosecutor asked her, ―Like what kind of white

things,‖ she said, ―Like sores.‖ Furthermore, the record showed that on August 14, 2007,

V.V. was taken to Driscoll Children‘s Hospital and that Dr. Harper later diagnosed her with

two STDs—herpes and chlamydia. While Castillo and V.V.‘s mother were at Driscoll

Children‘s Hospital with V.V., they were interviewed by a social worker, Lisa Porterfield.

Porterfield testified Castillo told her he had been tested before for STDs and that ―this was

prior to he and [V.V.‘s] mother becoming involved with each other, and . . . that . . . they

had . . . been together about a year-and-a-half to two years.‖ He told Porterfield ―that the

STD testing that he had gotten was negative and then shortly after they [he and V.V.‘s

mother] were together . . . he had developed a rash to his private area, and because his

STD testing was negative he had sent [V.V.‘s] mother to go get tested.‖ Castillo told her

that V.V.‘s mother ―was told that she was diagnosed with herpes.‖ Porterfield stated that

V.V.‘s mother had been infected with herpes for ―a couple of years.‖

       Dr. Harper testified that Castillo said that ―he had had this rash reoccur on several

occasions. . . .‖ She said this ―is very typical for the herpes virus.‖ When the prosecutor

asked Dr. Harper, ―[W]hen is the appropriate time to be tested for herpes?‖, she said,


2
  We note that the prosecutor did not ask V.V. if appellant penetrated her sexual organ with his sexual
organ, and V.V. never denied that he did not penetrate her sexual organ with his sexual organ.
                                                  10
―You have to actually have not only ulcers but some of the postule [sic] or blisters, . . . .‖

When asked, ―And on a male where would those blisters most normally be?‖, she

explained that ―for a male, they could be on the head of your penis. They could be on the

shaft of your penis. They could be down around the base of your penis.‖ She testified

that if a man did not want to have a positive herpes test, he could make sure he did not

have any sores when he got tested. With respect to transmission of the herpes virus, Dr.

Harper stated that, ―[w]e call herpes infections highly suspicious for sexual abuse‖

because ―[t]hey require close sort of steady sexual contact, genital-to-genital contact.‖

She said herpes is ―[v]ery rarely‖ transmitted nonsexually.

       Based upon this evidence, a rational jury could reasonably conclude that Castillo

had herpes and that he transmitted this disease to V.V. by penetrating her sexual organ

with his sexual organ.

       After viewing all of the evidence in the light most favorable to the verdict, a rational

jury could have reasonably concluded beyond a reasonable doubt that while V.V. was

younger than fourteen years of age and not Castillo‘s spouse, Castillo intentionally or

knowingly (1) caused the penetration of her mouth with his sexual organ, (2) caused the

penetration of her anus by his finger, and (3) caused the penetration of her sexual organ

with his sexual organ. Issues one and two are overruled.

B. Indecency With A Child By Exposure

       In issue three, Castillo argues the evidence is legally insufficient to support his

convictions for indecency with a child by exposure (counts three and five). In issue four,

he argues the evidence is factually insufficient to support his convictions for these same


                                             11
offenses.

       1. Applicable Law

       Section 21.11(a) of the penal code provides that a person commits the offense of

indecency with a child by exposure ―if, with a child younger than 17 years of age, . . . the

person: . . . (2) with intent to arouse or gratify the sexual desire of any person: (A)

exposes the person‘s anus or any part of the person‘s genitals, knowing the child is

present . . . .‖ TEX. PENAL CODE ANN. § 21.11(a)(2)(A); see Breckenridge v. State, 40

S.W.3d 118, 128 (Tex. App.–San Antonio 2000, pet. ref‘d). A fact finder can infer the

requisite, specific intent to arouse or gratify the sexual desire of any person ―from the

defendant‘s conduct, remarks, and all surrounding circumstances.‖ Id. (citing McKenzie

v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981)). The testimony of a child victim

alone is sufficient to support a conviction for indecency with a child. Perez, 113 S.W.3d

at 838; see TEX. CODE CRIM. PROC. ANN. art. 38.07; Tear, 74 S.W.3d at 560.

       2. Analysis

       To prove counts three and five as set forth in the charge, the State was required to

establish beyond a reasonable doubt that Castillo ―did then and there, with intent to

arouse or gratify the sexual desire of the defendant, intentionally or knowingly expose the

defendant‘s genitals, knowing that [V.V.], a child younger than 17 years of age and not the

defendant‘s spouse, was present, . . . .‖

        V.V. testified that on one occasion, Castillo had removed her nightgown and

panties and then took off his pants. When he took off his pants, she saw his ―private

part.‖ When asked by the prosecutor if his private part was ―little‖ or ―big,‖ she said, ―Big.‖


                                              12
She testified he would then ―get on top of me.‖ When the prosecutor asked her, ―And

when he got on top of you his private part was out of his pants? Was it out of his

underwear?‖, she said, ―Yes.‖ She testified that on another occasion, Castillo told her to

go to the living room. She stated that while in the living room, ―[h]e would want me to go

over there by him and to put my mouth on his front part.‖ When the prosecutor asked

her, ―And . . . did you look . . . at his front part?‖, she said, ―Yes‖, and stated that ―[i]t had

white things on it.‖ When asked ―[l]ike what kind of white things,‖ she said, ―Like sores.‖

Based upon V.V.‘s testimony, a rational jury could have found beyond a reasonable doubt

that Castillo, on at least two occasions, while knowing that V.V., a child younger than

seventeen years of age and not his spouse, was present, exposed his genitals to her with

intent to arouse or gratify his sexual desire. We hold the evidence is legally sufficient to

support his convictions for indecency with a child by exposure. Issues three and four are

overruled.

                                        III. CONCLUSION

       We affirm the trial court‘s judgment.




                                                       ROSE VELA
                                                       Justice

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

Delivered and filed the
3rd day of March, 2011.




                                               13
