      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00684-CR



                                   Abel Medrano, Appellant

                                                v.

                                  The State of Texas, Appellee


   FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
          NO. 8602, HONORABLE C. W. DUNCAN JR., JUDGE PRESIDING



                              MEMORANDUM OPINION


               A jury found Abel Medrano guilty of sexual assault. The conviction was enhanced

by felony convictions for delivery of marijuana and burglary of a habitation to which appellant

pleaded true, and the jury assessed punishment at 35 years in prison. On appeal, appellant contends

that the evidence was insufficient to show penetration of the victim’s sexual organ. We will affirm

the judgment of conviction.


                                      Standard of Review

               When reviewing the sufficiency of the evidence to support a conviction, we consider

all the evidence in the light most favorable to the verdict to determine whether any rational trier

of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319 (1979). The sufficiency of the evidence is measured by reference to
the elements of the offense as defined by a hypothetically correct jury charge for the case. Villarreal

v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009).

                In determining the legal sufficiency of the evidence, we must consider all the evidence

in the record, whether direct or circumstantial, properly or improperly admitted, or submitted by the

prosecution or the defense. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We

review all the evidence in the light most favorable to the verdict and assume that the trier of fact

resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a

manner that supports the verdict. Jackson, 443 U.S. at 318. A legal-sufficiency review requires us

to defer to the jury’s determinations of the witnesses’ credibility and the weight to be given their

testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). The jury, as the exclusive

judge of the facts, is entitled to weigh and resolve conflicts in the evidence and draw reasonable

inferences therefrom. Clayton, 235 S.W.3d at 778; see Tex. Code Crim. Proc. art. 38.04. Thus,

when faced with a record of historical facts that supports conflicting inferences, we must presume

that the trier of fact resolved any such conflicts in favor of the verdict and defer to that resolution.

Jackson, 443 U.S. at 326.

                The standard of review on appeal is the same for both direct and circumstantial

evidence cases. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). Circumstantial

evidence is as probative as direct evidence in establishing guilt and may alone be sufficient to

establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). So long as “the verdict

is supported by a reasonable inference, it is within the province of the factfinder to choose which

inference is most reasonable.” Laster v. State, 275 S.W.3d 512, 523 (Tex. Crim. App. 2009). Our



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role is that of a due process safeguard, ensuring only the rationality of the trier of fact’s finding of

the essential elements of the offense beyond a reasonable doubt. Allen v. State, 249 S.W.3d 680, 688

(Tex. App.—Austin 2008, no pet.).

                The statute applicable in this case defines the offense as including penetration of the

female sexual organ, which courts have deemed to be more than contact with the outside of the body,

but not necessarily entry into the vaginal canal. See Tex. Penal Code § 22.011; Vernon v. State,

841 S.W.2d 407, 409 (Tex. Crim. App. 1992). In Vernon, the victim had a healing wound under the

fold of the outer lips of her vagina, not actually inside the vagina but beneath the hymen. Id. The

court concluded that the appellant’s use of his finger in the area of the wound constituted penetration

under the sexual assault statute. Id. at 409-10; see also Karnes v. State, 873 S.W.2d 92, 96

(Tex. App.—Dallas 1994, no pet.).


                                     Testimony and Evidence

                The various witnesses’ testimony about events leading up to the encounter between

appellant and Lisa,1 the complaining witness, was essentially similar. Lisa, appellant, and friends

went to a bar after nine on a Friday night and stayed until the bar closed at 2 a.m. Lisa’s friend

Angela then drove her, appellant, and another man to a friend’s house to continue their night. Lisa

was intoxicated and opted to stay in the car, reclined in the passenger seat, while the others went

up to the house. Angela testified that, while there, appellant asked about Lisa several times, and

Angela told him Lisa was passed out in her car. Angela went to the restroom and, when she returned




       1
           Lisa is the pseudonym for the complaining witness used in the trial court.

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to the group, a partygoer suggested that she check on her friend. She went to her car and saw

appellant thrusting as if he was having sex. Lisa testified that she did not remember anything from

the time Angela left the car until awakening to hear Angela screaming and to find appellant just

above her but not touching her at that point. Appellant then left the car through the driver’s door,

pulling his pants up as he exited. Lisa found that her shirt and bra were pushed up and her pants

and shoes were on the floorboard. There was a stain on the seat that forensic scientific testing later

identified as semen, with appellant as the likely contributor.2

                Lisa did not want to talk to the police after the incident. She got dressed, had Angela

take her to her car at the club, and drove home while Angela followed. Lisa removed her clothes and

showered. By Monday, however, Lisa decided to go to the police. She gave her statement, as did

Angela, and was examined by a Sexual Assault Nurse Examiner later that night.

                Lisa testified that she did not remember whether appellant penetrated her vagina

because she was unconscious during the encounter. She testified that she believed he had because,

after the encounter, she was “wet down there.” When she showered after returning home, she

examined herself to see if she was bleeding because she “hurt down there.” She was so uncertain

of what had happened that on the Monday after she asked her friend Angela by text, “Do you think

he had sex with me?” Lisa did not tell either the police or the nurse that appellant had penetrated

her, but she did tell the nurse that she had pain, especially while urinating.




        2
            The Department of Public Safety crime lab’s forensic scientist testified that “[t]he
probability of selecting an unrelated person at random would be approximately one in 1.462
septillion for Caucasians, one in 55.19 septillion for blacks, and one in 1.77 sextillion for Hispanics.”

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               The nurse examiner confirmed that Lisa reported pain “down there” generally and

when she urinated. Although Lisa did not report penetration, the nurse wrote “there was penetration”

based on her observation of Lisa’s tenderness to touch and a half-centimeter abrasion on her hymen.

The nurse testified that the abrasion could have been caused by penetration by appellant, but

conceded that it could have other causes, including sex with someone else or Lisa vigorously

cleaning herself. Lisa denied having sex with anyone else since six days before her encounter with

appellant. Swab samples taken from Lisa did not reveal the presence of semen. The nurse also noted

bruising on Lisa’s elbows and knees.

               Appellant called an expert who questioned the quality of the SANE nurse’s report

because she failed to record vital signs such as blood pressure and presented her conclusion that there

was penetration instead of simply documenting what Lisa had reported. The expert also faulted the

nurse for including appellant’s report of the semen stain in the car without examining the car herself.

She also testified that semen can be recovered from a person’s body for at least four days after an

encounter, so the swabs could have revealed its presence in Lisa if any was deposited or remained.

The expert also testified that an abrasion to Lisa’s hymen tissue should have healed if it had been

caused by appellant 71 hours before the examination and that determining the age of a bruise was

too subjective to be reliable.

               The police investigator who took Lisa’s statement testified that when he asked Lisa

whether appellant penetrated her, she told him she could not remember. He said he collected the

pants she wore the night of her encounter with appellant, but that the Department of Public Safety’s

crime laboratory did not test them. A forensic scientist from DPS’s crime lab stated that he opted



                                                  5
not to test the pants because the semen on the car seat had identified appellant. The Lampasas

investigator denied testimony that, when serving subpoenas on witnesses, he expressed disbelief

that this offense was being prosecuted. He stated that he instead had agreed when the subpoenaed

witness stated “I can’t believe Medrano did what he did . . . .”


                                            Application

               Appellant challenges the sufficiency of the evidence only of penetration of Lisa’s

female sexual organ in violation of Texas Penal Code section 22.011. There is undisputed evidence

that Lisa was reclining in the front passenger seat of a vehicle, that appellant was seen thrusting as

if he was having sex while facing the passenger seat, that he exited the vehicle putting on his pants,

that Lisa’s upper-body clothing was pushed up and her lower-body clothing was removed, and that

appellant’s semen was found on the front passenger seat. No one—not even Lisa—reported seeing

appellant penetrate her, but Lisa testified that she believed he had penetrated her because she noted

wetness after their encounter and because she felt pain in her vagina. The SANE nurse observed an

abrasion consistent with penetration of Lisa’s sexual organ.

               The standard of review controls the outcome of this appeal. The jury must weigh and

resolve conflicts in the evidence and draw reasonable inferences therefrom. Clayton, 235 S.W.3d

at 778. When faced with a record that supports conflicting inferences, we must presume that the jury

resolved any such conflicts in favor of the verdict and defer to that resolution. Jackson, 443 U.S.

at 326. We conclude that this record provided the jury sufficient evidence to rationally infer that

appellant penetrated Lisa’s sexual organ with his penis in violation of the statute. See Tex. Penal

Code § 22.011. We resolve the sole issue on appeal in favor of the jury’s verdict and the judgment.

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                                        Conclusion

              We affirm the judgment of conviction.




                                           Jeff Rose, Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Affirmed

Filed: August 28, 2013

Do Not Publish




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