      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-12-00455-CV



                                       In the Matter of D. G.


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
       NO. J-32,568, THE HONORABLE W. JEANNE MEURER, JUDGE PRESIDING



                             MEMORANDUM OPINION


                The district court, sitting as a juvenile court, adjudicated appellant, D.G., delinquent

after finding that he committed the offense of sexual assault. See Tex. Fam. Code § 54.03(f); Tex.

Penal Code § 22.011. The court placed appellant on determinate-sentence probation for ten years.

See Tex. Fam. Code §§ 53.045(a), 54.04(d)(3), (q). On appeal, appellant contends that the evidence

was insufficient to support his adjudication and that the trial court erred in placing him on probation

under a determinate sentence. We affirm the juvenile court’s judgment of adjudication and order

of probation.


                                          BACKGROUND

                In August of 2011, B.E. took her 11-year-old daughter, K.C.G., to the doctor because

she had been sleeping a lot and had gained weight.1 The doctor’s visit revealed that K.C.G. was

approximately 22 weeks pregnant. At first, the girl identified her mother’s ex-boyfriend as the


       1
        To protect the identity and privacy of the children in this case, we identify the children and
family members only by their initials.
father. However, she then disclosed that appellant, her 13-year-old brother, was the father. When

interviewed during the police investigation, appellant admitted that he had sexual intercourse with

his sister. The pregnancy was terminated and fetal material was preserved for testing. Subsequent

DNA paternity testing identified appellant as the father.


                                          DISCUSSION

                                   Sufficiency of the Evidence

               Adjudications of delinquency are based on the criminal standard of proof. See id.

§ 54.03(f). Consequently, although juvenile proceedings are civil matters, we review the sufficiency

of the evidence underlying a finding that the juvenile engaged in delinquent conduct by applying the

standard applicable to challenges to the sufficiency of the evidence in criminal cases. In re R.R.,

420 S.W.3d 301, 303 (Tex. App.—El Paso 2013, no pet.); In re M.C.L., 110 S.W.3d 591, 594 (Tex.

App.—Austin 2003, no pet.).

               When reviewing the sufficiency of the evidence, we consider all of the evidence in

the light most favorable to the verdict to determine whether, based on the evidence and reasonable

inferences therefrom, any rational fact-finder could have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Anderson v. State,

416 S.W.3d 884, 888 (Tex. Crim. App. 2013); see Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.

App. 2010). In our review, we 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; see Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).




                                                 2
               Paragraph III of the first amended petition alleged that appellant penetrated K.C.G.’s

sexual organ with his sexual organ without her consent. See Tex. Penal Code § 22.011(a)(1)(A)

(person commits sexual assault if he intentionally or knowingly causes penetration of another

person’s sexual organ by any means without that person’s consent). Appellant does not dispute that

he penetrated K.C.G.’s sexual organ with his sexual organ as alleged, but argues that the evidence

is insufficient to demonstrate that the penetration was without K.C.G.’s consent.

               At trial, K.C.G. testified that she was home alone with appellant, her brother, when

she fell asleep on the couch while watching cartoons. She awoke to her brother lying on top of her,

“roughhousing” between her legs. Her clothes were on the floor, but she had not taken them off.

After she awoke, she only “half open[ed]” her eyes and “just laid there.” She said that she did not

think that appellant “saw her.”2 K.C.G. described the “roughhousing” as “touching and feeling, and

all that.” She testified, using anatomically correct dolls to demonstrate, that she felt “[t]hat thingy

by down there” going up and down touching her “in [her] body parts.”3 She indicated that the only

time appellant stopped was when she squirmed a little bit at one point and appellant “just stop[ped]

right there and just kept going.” She described feeling “weird and awkward” and said that her body

“felt icky” after appellant finished. There was “white creamy kind of stuff” that she had never seen

before on her body “where [she] pee[d].” Finally, K.C.G. testified that appellant never asked her if

it was okay and she never told him it was.

       2
         It is unclear from her testimony if K.C.G. was referring to her eyes being half open or to
her being awake or both.
       3
         As she testified, K.C.G. pointed to the crotch area of the male doll and explained that “that
thingy” is used “[t]o go to the bathroom [to] pee.” Similarly, she explained that appellant was
touching her “in [her] body parts” where “[she goes] to the bathroom [t]o pee.”

                                                  3
               Appellant argues that the evidence is insufficient to show that he caused the

penetration of K.C.G.’s sexual organ without her consent because the evidence fails to demonstrate

that he used physical force or violence or threatened to use force or violence. However, the Penal

Code sets forth several circumstances in which a sexual assault is without a person’s consent. See

id. § 22.011(b)(1)–(11). Compelling the other person to submit or participate by the use of physical

force or violence or by threatening to use force or violence, however, are only two of those

circumstances. See id. § 22.011(b)(1), (2). Under subsection (b)(3), a sexual assault is without the

other person’s consent if “the other person has not consented and the actor knows the other person

is unconscious or physically unable to resist.” Id. § 22.011(b)(3). Under subsection (b)(5), a sexual

assault is without the other person’s consent if “the other person has not consented and the actor

knows the other person is unaware that the sexual assault is occurring.” Id. § 22.011(b)(5).

               Here, K.C.G.’s testimony demonstrated that appellant removed her clothes while she

was asleep and that when she awoke appellant was on top of her already engaging in sexual conduct.

Thereafter, she kept her eyes half-closed and laid still, basically pretending to be asleep. One can

infer from this evidence, and reasonable inferences from it, that appellant knew that K.C.G. did not

consent to the sexual conduct, thought she was asleep when he penetrated her sexual organ with his

penis, and thus knew that she was unaware the sexual assault was occurring or that she was not in

a condition to resist.4 See Hughes v. State, 194 S.W.3d 649, 654 (Tex. App.—Tyler 2006, no pet.)

(concluding that jury could infer that appellant knew that he did not have victim’s consent because


       4
         The testimony that the only time appellant stopped during the sexual assault was when
K.C.G. squirmed also supports the inference that appellant believed she was asleep when he was
having sex with her.

                                                 4
he began sexual assault while she slept). Accordingly, K.C.G.’s testimony supports appellant’s

adjudication. See Tex. Code Crim. Proc. art. 38.07(a), (b)(1) (uncorroborated testimony of

child victim is sufficient to support conviction for sexual offense); see also Perez v. State,

113 S.W.3d 819, 838 (Tex. App.—Austin 2003, pet. ref’d), overruled on other grounds by Taylor

v. State, 268 S.W.3d 571, 587 (Tex. Crim. App. 2008).

               Viewing the evidence in the light most favorable to the verdict, we conclude that a

rational fact-finder could have found beyond a reasonable doubt that appellant penetrated K.C.G.’s

sexual organ without her consent. See Jackson, 443 U.S. at 319; see also Brooks, 323 S.W.3d at

898–99. Therefore, the evidence was sufficient to support the juvenile court’s finding that appellant

engaged in delinquent conduct as alleged in paragraph III.5 We overrule appellant’s first issue.


                                       Grand Jury Approval

               In his second issue, appellant contends that the juvenile court abused its discretion

in giving him determinate-sentence probation because the State did not obtain grand jury approval

for the offenses of sexual assault alleged in the first amended petition.




       5
           Based on a subsequent outcry made by K.C.G., paragraph IV of the amended petition
alleged a second incident where appellant penetrated K.C.G.’s sexual organ with his sexual organ
without her consent. However, during her testimony, K.C.G. did not testify about any additional
incident, saying, “It really didn’t matter if he did it once or twice.” The State opted not to question
the outcry witness about the substance of K.C.G.’s outcry statement about this incident. See Tex.
Fam. Code § 54.031 (outcry statement of child abuse victim is admissible as exception to hearsay
rule); Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim. App. 2005) (outcry statements of child
abuse victim are substantive evidence of crime). Accordingly, the juvenile court found the
allegations contained in paragraph IV to be not true.

                                                  5
                Grand jury approval of a petition alleging delinquent conduct is mandatory for the

juvenile court to impose a determinate sentence (or probation under a determinate sentence) for that

conduct. Section 53.045 of the Juvenile Justice Code provides that a prosecuting attorney may refer

the petition alleging delinquent conduct to the grand jury if the child has engaged in delinquent

conduct that violates certain listed criminal offenses. See Tex. Fam. Code § 53.045(a). A juvenile

court may not impose a determinate sentence unless (1) the prosecuting attorney refers the petition

to the grand jury; (2) the grand jury approves the petition and certifies its approval; and (3) the grand

jury’s certification is entered in the record. Id. § 53.045(b), (d). If the State’s petition was not

approved by the grand jury, then the juvenile court is without jurisdiction to impose a determinate

sentence. See id. § 54.04(d); In re J.G., 195 S.W.3d 161, 180 (Tex. App.—San Antonio 2006,

no pet.).

                In this case, a Certificate of Approval of Juvenile Petition by Grand Jury, filed on

February 10, 2012, appears in the record, in which the foreperson of the grand jury certified that the

petition had been presented to the grand jury and approved on February 9, 2012. Specifically, the

certificate of approval states:


                IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS,
        the duly organized Grand Jury of Travis County, Texas, presents to the Juvenile
        Court of Travis County, Texas, that after having been presented with and inquiring
        into the First Amended Original Petition Alleging Delinquent Conduct Seeking
        a Determinate Sentence in Cause Number JV 32,568, filed on the 8th day of
        February, 2012, in the 98th District Court, wherein [appellant], Respondent, is
        alleged to have engaged in delinquent conduct namely, the offense of Aggravated
        Sexual Assault Child as alleged in said First Amended Original Petition Alleging
        Delinquent Conduct Seeking a Determinate Sentence, do hereby find that there
        is probable cause to believe that said Respondent did engage in such
        delinquent conduct.

                                                   6
               We do hereby CERTIFY AND APPROVE said petition to the Juvenile Court
        pursuant to Section 53.045 of the Texas Family Code.


(Emphasis added.) Appellant argues that the certificate reflects approval for the offense of

aggravated sexual assault of a child rather than sexual assault, and thus the juvenile court was

without authority to impose a determinate sentence. We disagree.

                While the certificate refers to the offense of “aggravated sexual assault child,” the

certificate explicitly indicates that the grand jury reviewed and approved the State’s First Amended

Original Petition Alleging Delinquent Conduct Seeking a Determinate Sentence that was “filed on

the 8th day of February, 2012.” Further, the certificate references the offense “as alleged in said First

Amended Original Petition Alleging Delinquent Conduct Seeking a Determinate Sentence.” The

State’s first amended petition, filed on February 8, 2012, alleged the commission of sexual assault.6

Thus, the certificate reflects grand jury approval of the first amended petition which alleged sexual

assault offenses. When appellant first asserted that the juvenile court lacked jurisdiction to impose

a determinate sentence (during closing argument of the disposition hearing), the juvenile court

conducted a hearing after which the court found that the reference to aggravated sexual assault of

a child was merely a typographical error. The record supports this conclusion.

                This conclusion is corroborated by the procedural history of this case, particularly the

factual allegations of the petitions and the corresponding presentment documents. There were only

two petitions filed in this case, both of which alleged the same sexually assaultive conduct


        6
          The two charging paragraphs of the amended petition alleged that appellant “violated a
penal law of this State punishable by imprisonment, to-wit: Section 22.011 of the Texas Penal Code
(Sexual Assault)” by penetrating K.C.G.’s sexual organ with his sexual organ without her consent.

                                                   7
(penetration of K.C.G.’s sexual organ with appellant’s sexual organ). The two petitions were almost

identical except that Petition #1, filed October 26, 2011, sought a determinate sentence for

aggravated sexual assault of a child while Petition #2 sought a determinate sentence for sexual

assault.7 There was a separate certificate of grand jury approval of Petition #1 on October 25, 2011.

That certificate indicates that the grand jury reviewed and approved the State’s Original Petition

Alleging Delinquent Conduct Seeking a Determinate Sentence that was “filed on the 12th day of

September, 2011,” and referenced the offense of “Aggravated Sexual Assault - Child as alleged in

said Original Petition Alleging Delinquent Conduct Seeking a Determinate Sentence.” Thus, the

record contains two distinct petitions alleging delinquent conduct based on different Penal Code

offenses, each with a corresponding certificate of grand jury approval.

               Based on the forgoing, we conclude that requisite grand jury approval occurred in this

case. We overrule appellant’s second issue.




       7
           Petition #1 alleged that appellant violated “Section 22.021 of the Texas Penal Code
(Aggravated Sexual Assault Child)” by penetrating the sexual organ of K.C.G., a child younger than
14 years of age, with his sexual organ. As noted above, petition #2 alleged that appellant violated
“Section 22.011 of the Texas Penal Code (Sexual Assault)” by penetrating K.C.G.’s sexual organ
with his sexual organ without her consent.
       The record reflects that the amended petition was filed when the State realized that it could
not seek a determinate sentence for aggravated sexual assault of a child because the age difference
between appellant and K.C.G. was only two years. See Tex. Fam. Code. § 53.045(e) (“The
prosecuting attorney may not refer a petition that alleges the child engaged in conduct that violated
Section 22.011(a)(2), Penal Code [sexual assault of a child], or Sections 22.021(a)(1)(B) and (2)(B),
Penal Code [aggravated sexual assault], unless the child is more than three years older than the
victim of the conduct.”).

                                                 8
                                        CONCLUSION

               Having overruled appellant’s two issues, we affirm the juvenile court’s judgment of

adjudication and order of probation.



                                             __________________________________________
                                             Melissa Goodwin, Justice

Before Justices Puryear, Rose, and Goodwin

Affirmed

Filed: July 23, 2014




                                                9
