                                    NO. 07-04-0550-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                    MAY 5, 2005
                          ______________________________

                                STEPHEN E. ESPINOZA,

                                                                Appellant

                                             v.

                                 THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

             FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2004-406,412; HON. CECIL G. PURYEAR, PRESIDING
                        _______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.

       Appellant, Stephen E. Espinoza, appeals his conviction for sexual assault via one

issue. Through it, he contends that the evidence was legally and factually insufficient to

support the jury’s verdict of guilty. We affirm the judgment of the trial court.

                                       Background

       On August 15, 2000, the victim and two male companions, one of whom was named

Albert, went to Cici’s Bar and Grill in Lubbock where they continued drinking after having

already spent time at another bar. The victim became intoxicated and began to feel sick.

When the party she was with opted to stay longer, she went to Albert’s car and fell asleep

in the back seat. Thereafter, she was awakened by appellant as he was having intercourse
with her. She did not consent to the intercourse. Nor was she aware of the fact that

appellant was the individual who was assaulting her.

       Initially, Carla thought it was Albert. However, appellant eventually admitted, via a

written statement, that he was the one who approached her as she lay in the back seat,

heard her respond incoherently to his attempts at discussion, began to fondle her, lowered

her pants and underwear, and inserted his penis in her vagina. When asked, he denied

that she gave him verbal consent to engage in intercourse with her. He further admitted

that she was “groggy” when he approached her in the car and that she was unconscious

when he completed the act. So too did he state that he “took advantage of her because

she was too drunk.”

                        Standard of Review and Its Application

       The standards by which we review the legal and factual sufficiency of evidence are

well established. We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,

61 L.Ed.2d 560 (1979); Sims v. State, 99 S.W.3d 600 (Tex. Crim. App. 2003); Zuliani v.

State, 97 S.W.3d 589 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556 (Tex. Crim.

App. 2000) for an explanation of them.

       Next, a person commits sexual assault if he intentionally or knowingly causes the

penetration of the anus or sexual organ of another person by any means without that

person’s consent. TEX . PEN . CODE ANN . §22.011(a)(1)(A) (Vernon Supp. 2004-05). Here,

appellant contends that the State failed to prove that the penetration occurred without the

victim’s consent. This is allegedly so because it failed to show that he knew his victim was

unaware of the sexual assault as it occurred. That the accused knows the victim is

unaware of the sexual assault as it occurs is one of several ways in which the absence of



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consent can be established. See id. §22.011(b)(5) (stating that a sexual assault is without

consent of the other person if the other person has not consented and the actor knows the

other person is unaware that the sexual assault is occurring).

       The testimony upon which appellant relies to support his claim is that wherein the

victim admitted to becoming aware of the assault while it progressed. Yet, that evidence

is of little import when placed in context. This is so because she did not awaken and

become aware of the act until appellant had already penetrated her sexual organ with his

penis. See Murphy v. State, 4 S.W.3d 926, 929 (Tex. App.–Waco 1999, pet. ref’d) (stating

that proof of penetration, however slight, is enough to support a conviction for assault). By

that time, the assault had already occurred.

       Simply put, what we have before us is appellant’s own admission that his victim was

“groggy,” incoherent, and drunk when he first approached her as she lay in the back seat

of the car. When we add to it 1) his concession that he took advantage of her because she

was drunk and that she did not consent to the intercourse, 2) her testimony that she was

actually asleep, and 3) the evidence that he had already penetrated her female sexual

organ when she awoke and felt his presence inside her, a rational jury could conclude,

beyond reasonable doubt, that appellant lacked consent and knew his victim was unaware

of the assault when it first occurred. Moreover, the evidence supporting the verdict is

neither weak nor overwhelmed by the remainder of the evidence.

       In short, the verdict has the support of both legally and factually sufficient evidence.

Accordingly, the judgment of the trial court is affirmed.



                                                   Brian Quinn
Do not publish.                                      Justice

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