Opinion filed August 14, 2014




                                      In The


        Eleventh Court of Appeals
                                    __________

                                No. 11-12-00202-CR
                                    __________

                        INEZ DELACRUZ, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                      On Appeal from the 51st District Court
                            Tom Green County, Texas
                       Trial Court Cause No. A-11-0668-SB

                      MEMORANDUM OPINION
      Inez Delacruz appeals his jury convictions for two counts of aggravated
sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021 (West Supp. 2013).
For each conviction, the jury assessed Appellant’s punishment at confinement in
the Institutional Division of the Texas Department of Criminal Justice for a term of
fifty-five years. In a single issue on appeal, Appellant argues that the trial court
erred when it denied his motion for instructed verdict. We affirm.
                                Standard of Review
      A challenge to the trial court’s denial of a motion for an instructed verdict or
a motion for a directed verdict is treated as a challenge to the sufficiency of the
evidence.   Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996);
Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990) (“A challenge to
the trial judge’s ruling on a motion for an instructed verdict is in actuality a
challenge to the sufficiency of the evidence to support the conviction.”).
      We review a sufficiency of the evidence issue, regardless of whether it is
denominated as a legal or factual claim, under the standard of review set forth in
Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—
Eastland 2010, pet. ref’d). Under the Jackson standard, we 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 elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). In conducting a sufficiency review, we defer to the jury’s
role as the sole judge of the witnesses’ credibility and the weight their testimony is
to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the
factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the
record supports conflicting inferences, we presume that the factfinder resolved the
conflicts in favor of the prosecution and defer to that determination. Jackson, 443
U.S. at 326; Clayton, 235 S.W.3d at 778.
                                 Background Facts
      Appellant was charged by indictment with two counts of aggravated sexual
assault of a child. The indictment alleged that, on or about October 5, 2010,
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Appellant intentionally or knowingly caused the female sexual organ of J.T., a
child under the age of fourteen, to contact Appellant’s sexual organ.              The
indictment further alleged that, on or about October 10, 2010, Appellant
intentionally or knowingly caused the anus of J.T. to contact Appellant’s sexual
organ.
         Holly Pearson, J.T.’s third-grade math teacher, testified as an outcry witness
in this case. Pearson recalled that, in the spring of 2011, she noticed that J.T. was
not turning in her homework. When Pearson asked J.T. if she was okay, J.T. said
“no.” J.T. had difficulty talking to Pearson, so Pearson suggested that J.T. write
her a note. J.T. and Pearson then had the following written conversation:

               J.T.: I’m having a hard time because my step-dad touched me in
         places I shouldn’t be touched at

                 Pearson: When did this happen?
                 J.T.: last month
                 Pearson: Has it happened a lot?
                 J.T.: yes it [h]as.

As soon as class was over, Pearson called the police. Pearson later provided the
police with J.T.’s note.
         J.T., who was ten years old at the time of trial, testified that she knew
Appellant as her “stepfather.” 1 J.T. explained that Appellant used to live in her
house and that he sometimes watched her and her siblings when her mother went
to work. J.T. stated that Appellant sexually abused her on “many occasions.” J.T.
specifically recalled an incident that occurred one day when her mother was at
work; during this incident, Appellant touched her unclothed buttocks and sexual


         1
          J.T.’s mother testified that Appellant is her ex-boyfriend.


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organ with his penis. 2 J.T. noted that it hurt when Appellant put his penis on her
“butt.”
       A sexual assault nurse examiner, Cathy Sparks, testified that she performed
a sexual assault examination on J.T. on April 7, 2011. Sparks recalled that, during
the examination, J.T. told her that Appellant had touched her sexual organ and put
“his privates inside” her after he put “some kind of jelly stuff on it.” J.T. also
stated that Appellant told her not to tell anyone about the abuse or he would hurt
her family.
       Appellant testified that he moved in with J.T.’s mother in the spring of 2010
and noted that he took care of J.T. and her siblings on a few occasions. Appellant
denied J.T.’s accusations and stated that he never touched her inappropriately.
       The jury found Appellant guilty of both charges of aggravated sexual assault
of a child. After Appellant pleaded true to the enhancement allegation that he had
previously been convicted of the felony offense of aggravated assault with a deadly
weapon, the jury assessed Appellant’s punishment at fifty-five years’
imprisonment for each conviction.
                                            Analysis
       Appellant bases his evidentiary challenge on the contention that his
convictions were “based on hearsay testimony that should not have been
admissible.” He contends that the testimony of Sparks that pertained to J.T.’s
description of the incident constituted inadmissible hearsay. 3 Thus, Appellant
bases his evidentiary challenge on the premise that this court cannot consider
Sparks’s testimony offered at trial in evaluating the sufficiency of the evidence.


       2
        J.T. used the word “cookie” to refer to her sexual organ, and the word “wee-wee” to refer to
Appellant’s penis.
       3
        The State contends and Appellant acknowledges that Appellant did not object at trial to this
testimony from Sparks.

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This premise is invalid. When conducting a sufficiency review, we consider all the
evidence admitted at trial, including pieces of evidence that may have been
improperly admitted. Clayton, 235 S.W.3d at 778; see Sorrells v. State, 343
S.W.3d 152, 155 (Tex. Crim. App. 2011); Neal v. State, 256 S.W.3d 264, 277
(Tex. Crim. App. 2008).
      When we assess the sufficiency of the evidence in cases involving child
victims, we cannot expect the child victims to testify with the same clarity and
ability that we would expect of a mature and capable adult. See Villalon v. State,
791 S.W.2d 130, 134 (Tex. Crim. App. 1990). The Court of Criminal Appeals has
recognized that expecting “such testimonial capabilities of children would be to
condone, if not encourage, the searching out of children to be the victims of crimes
such as the instant offense in order to evade successful prosecution.” Id.
Furthermore, the uncorroborated testimony of a child victim is sufficient to support
a conviction for indecency with a child and for aggravated sexual assault. TEX.
CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2013); Chapman v. State, 349
S.W.3d 241, 245 (Tex. App.—Eastland 2011, pet. ref’d). Corroboration of the
victim’s testimony by medical or physical evidence is not required. Gonzalez Soto
v. State, 267 S.W.3d 327, 332 (Tex. App.—Corpus Christi 2008, no pet.); see
Cantu v. State, 366 S.W.3d 771, 775–76 (Tex. App.—Amarillo 2012, no pet.); Lee
v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004), aff’d, 206
S.W.3d 620 (Tex. Crim. App. 2006).

      Appellant was charged with causing his sexual organ to contact the
complainant’s female sexual organ and anus. The evidence showed that Appellant
committed acts of penetration upon J.T. which necessarily encompasses contact.
Sparks reported that J.T. told her that “[Appellant] puts his private inside of me.
He puts some kind of jelly stuff on it. . . . It hurts.” J.T. directly testified that


                                         5
Appellant’s “wee-wee” touched her “cookie,” which she described as the front part
of her body between her legs. With regard to her anus, J.T. testified that Appellant
touched her “butt” with his “wee-wee” and that “it hurt.” Viewing J.T.’s testimony
in the light most favorable to the verdict, the jury could reasonably have equated
“butt” with anus, especially since J.T. complained of pain caused by the contact.
We conclude that a rational trier of fact could have found the elements of both
offenses beyond a reasonable doubt. We overrule Appellant’s sole issue.

                                   This Court’s Ruling
      We affirm the judgments of the trial court.



                                                          JOHN M. BAILEY
                                                          JUSTICE
August 14, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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