                                     NO. 07-10-00170-CR

                                 IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL C

                                       MARCH 11, 2011


                        BERNARDO MARTINEZ SALCIDO, APPELLANT

                                              v.

                              THE STATE OF TEXAS, APPELLEE


                  FROM THE 287TH DISTRICT COURT OF BAILEY COUNTY;

               NO. BC-2597; HONORABLE GORDON HOUSTON GREEN, JUDGE


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                  MEMORANDUM OPINION

          Appellant, Bernardo Martinez Salcido, was convicted of indecency with a child by

sexual contact1 and sentenced to confinement in the Institutional Division of the Texas

Department of Criminal Justice (ID-TDCJ) for seven years.          Appellant appeals the

sentence contending that the evidence was not sufficient to sustain the conviction. We

affirm.




          1
              See TEX. PENAL CODE ANN. § 21.11(a)(1) (West Supp. 2010).
                          Factual and Procedural Background


      In the summer of 2009, the victim, K.C., and her younger sister came to

Muleshoe to visit their father, Gary Childers.       Childers rented a residence from

appellant. At the time of the incident in question, K.C. was 14 years old. During the

course of K.C.’s stay in Muleshoe, she had met appellant and been inside his home on

several occasions. According to K.C., the house her father lived in did not have a

television and was not air conditioned, and, for these reasons, K.C. and her sister would

go to appellant’s home during the day while her father was at work. The testimony of

K.C. revealed that on July 9, 2009, she and her sister had gone to appellant’s home on

approximately three occasions earlier in the day only to find no one at home. Finally, in

the late afternoon, K.C. went back to appellant’s home again. This time her sister had

declined to go with her. Upon arriving, K.C. saw appellant outside his home in the

driveway. When K.C. pulled up on her bicycle, appellant spoke to her and invited her

into the house. K.C. testified that she followed appellant into the house, through the

living room, through the kitchen, and into a back bedroom. K.C. also testified that, when

she went through the front door, appellant stopped and locked the door. Upon coming

into the back bedroom, K.C. testified that appellant pushed her up against a washer,

started saying he loved her, and pushed his hand down the outside of the front of her

shorts. After appellant slid his hand down the front of her shorts, K.C. was able to push

appellant away and run to the front door. She was able to get the door unlocked and

run out to her bicycle. K.C. went back to her father’s house and told her sister what

happened. They both rode their bicycles to Childers’s job site and told him what had

occurred. The police were called, and, later that evening, K.C. went to the police station
                                            2
and gave a statement.      Subsequently, appellant was arrested and indicted for the

offense of indecency with a child by contact. After a jury trial, appellant was convicted

and sentenced to seven years confinement in the ID-TDCJ. He appeals contending that

the evidence is insufficient to support the judgment of the trial court. We disagree with

appellant and affirm the judgment of the trial court.


                                  Evidentiary Sufficiency


       As an initial consideration, we observe that appellant’s appeal contends that the

evidence is both legally and factually insufficient. Appellant’s brief was prepared and

filed before the Texas Court of Criminal Appeals issued its opinion in Brooks v. State,

323 S.W.3d 893, 902 (Tex.Crim.App. 2010), wherein the court ruled that there is no

distinction between a claim of legal as opposed to factual insufficiency of the evidence.

Further, the court expressly overruled Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.

1996), and its purported application to factual sufficiency questions. Id. at 911. What

the court appears to do is to urge the reviewing court to apply a more rigorous

application of the sufficiency test set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979). See id. at 912. Therefore, we will review appellant’s

claims of evidentiary sufficiency under the standard of review set forth in Jackson. See

443 U.S. at 319.


Standard of Review


       In assessing the sufficiency of the evidence, we review 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,
                                             3
443 U.S. at 319; Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004).          We

measure the legal sufficiency of the evidence against a hypothetically correct jury

charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). Finally, when

reviewing all of the evidence under the Jackson standard of review, the ultimate

question is whether the jury’s finding of guilt was a rational finding. See Brooks, 323

S.W.3d at 906 (discussing Judge Cochran’s dissent in Watson v. State, 204 S.W.3d

404, 448-50 (Tex.Crim.App. 2006), as outlining the proper application of a single

evidentiary standard of review).2


Analysis


       The elements the State must prove in an indecency with a child by contact case

are:


             1. Appellant

             2. on or about July 9, 2009

             3. in Bailey County, Texas

             4. with intent to arouse or gratify his sexual desire

             5. intentionally and knowingly

             6. engaged in sexual contact

             7. with K.C.


       2
         We note that this Court has at times quoted Moreno v. State, 755 S.W.2d 866,
867 (Tex.Crim.App. 1988), for the proposition that we had to uphold the verdict of the
jury unless it was irrational or unsupported by more than a mere modicum of evidence.
We view such a statement, insofar as a modicum of evidence being sufficient evidence,
as contrary to a rigorous application of the Jackson standard of review urged by the
Court in Brooks.
                                            4
             8. by touching the genitals of K.C.

             9. a child younger than 17 years and not the spouse of appellant


      The sum of appellant’s argument regarding the sufficiency of the evidence is that

the testimony of K.C. never describes appellant touching K.C.’s genitals.           K.C.’s

testimony regarding the actual touching is as follows:


             Q. And can you tell us – what was the fir thing that happened there?
             A. He pushed me up against the washer and he started saying that he
             loved me and he would never hurt me and he was kissing my cheek and
             he slid his hand down the outside of my shorts.
             Q. I need you to be really specific when you answer these questions. I’m
             sorry, but when you say he slid his hand down the front of your shorts,
             you’ve testified that was on the ouside of your clothes?
             A. Yes, ma’am.
             Q. What did you have on that day?
             A. I had on blue shorts and an orange and white striped T-shirt.
             Q. And where did his hand- - when he was sliding his hand down the front
             of your shorts, where did it - - where did he start with his hand?
             A. What do you mean?
             Q. Where on your body was his hand when you first felt it?
             A. The palm of his hand was about at about waist and his fingers were
             down like below pubic - - where the pubic hair, like.
             Q. And where did his hand go?
             A. It just slid down a little further, and then I pushed him.
             Q. How far - - how far down did the palm part of his hand go?
             A. To the beginning of where pubic hair would be, and then that was it.
             Q. Did his hands go between your legs?
             A. No.


                                             5
              Q. How many times did that happen?
              A. Just once.

According to appellant, this testimony does not sufficiently describe a contact with the

genitals of K.C. to support the jury’s decision to convict.


       The Texas Court of Criminal Appeals has addressed this issue in Clark v. State,

558 S.W.2d 887, 889 (Tex.Crim.App. 1977), when it held that “[t]he definition of ‘sexual

contact’ under the statute includes the touching of ‘any part of the genitals’ of a person.3

Thus, the statute includes more than just the vagina in its definition; the definition of

‘genitals’ includes the vulva which immediately surrounds the vagina.” This holding has

recently been applied by the Fort Worth Court of Appeals to find the evidence sufficient

when the testimony revealed the defendant had touched the victim’s pubic hair. See

Carmell v. State, No. 02-97-197-CR, 2010 Tex. App. LEXIS 8035 at *24-*25

(Tex.App.—Forth Worth Sep. 30, 2010, no pet.).


       Both appellant and the State have cited the Court to Gray’s Anatomy of the

Human Body for a description of the female genital area. Gray’s describes the female

genital area as being comprised of:


       The external genital organs of the female are: the mons pubis, the labia
       majora et minora pudendi, the clitoris, the vestibule of the vagina, the bulb
       of the vestibule, and the greater vestibular glands. The term pudendum or
       vulva, as generally applied, includes all these parts.


       3
         Current section 21.11(c)(1) defines “sexual contact” as any touching by a
person, including touching through clothing, of the anus, breast, or any part of the
genitals of a child, if such touching was committed with the intent to arouse or gratify the
sexual desire of any person. See TEX. PENAL CODE ANN. § 21.11(c)(1) (West Supp.
2010).
                                              6
         The Mons Pubis (commissural labiorum anterior; mons Veneris), the
         rounded eminence in front of the pubic symphysis, is formed by a
         collection of fatty tissue beneath the integument. It becomes covered with
         hair at the time of puberty. Henry Gray, ANATOMY OF THE HUMAN BODY, §
         3d.5. (Warren H. Lewis ed., Lea & Febiger 20th ed. 1918), available at
         http://www.bartleby.com/107/270.html.


         The testimony of K.C. is that appellant’s palm went down to her pubic hair area.

Even though appellant’s fingers did not go between her legs, it is apparent that the palm

did in fact make contact with K.C.’s genital area. The pubic area is part of the vulva,

which the courts in Texas have determined to be part of the genital area of a female.

Clark, 558 S.W.2d at 889.       Therefore, the jury was acting rationally when it found

appellant guilty beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Ross, 133

S.W.3d at 620. Appellant’s issue is overruled.


                                        Conclusion


         Having overruled appellant’s single issue, we affirm the judgment of the trial

court.




                                                        Mackey K. Hancock
                                                             Justice




Do not publish.




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