                            NUMBER 13-13-00334-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

GABRIEL E. TORRES,                                                         Appellant,

                                            v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 319th District Court
                         of Nueces County, Texas.


                        MEMORANDUM OPINION
              Before Justices Rodriguez, Garza and Longoria
                Memorandum Opinion by Justice Longoria

      Appellant Gabriel Torres brings this appeal of his conviction for two counts of

indecency with a child by sexual contact. See TEX. PENAL CODE ANN. § 21.11 (c)(2) (West,

Westlaw through 2013 3d C.S.). We affirm.
                                                  I. BACKGROUND

       Testimony at trial revealed that in December 2010, two students approached Chris

Rangel, a fifth-grade teacher at Fannin Elementary School, and told him to talk with E.N.1

Rangel testified that E.N. told him that her step-father (Torres) was touching her

“inappropriately.” Rangel testified that he took E.N. to the school’s counselor, Ouida

Plimper. Plimper confirmed that E.N. made the same statements to her that she made to

Rangel. Plimper subsequently made a report to Child Protection Services. E.N. was

taken to a children’s hospital where Nurse Elizabeth Williams conducted a physical

examination. E.N. was also taken to the Children’s Advocacy Center where Ricardo

Jimenez conducted a forensic interview. The case was referred to the Corpus Christi

Police Department, which initiated an investigation through the Family Violence Unit.

       Torres was indicted on May 17, 2012 and charged with three counts of indecency

with a child by sexual contact. See id. During trial, the State dropped the third count.

The jury found Torres guilty of both counts and sentenced Torres to five years for each

count to be served consecutively. Torres filed a timely notice of appeal. By one issue,

Torres argues that the evidence is legally insufficient to prove beyond a reasonable doubt

that he made “sexual contact” with E.N. under section 21.11(c)(2) of the Texas Penal

Code. Id.

                               II. STANDARD OF REVIEW AND APPLICABLE LAW

       Under the legal sufficiency standard of review, we ask whether, “after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson v.



       1   E.N. is the moniker the trial court used to identify the child sexual abuse complainant.

                                                       2
Virginia, 443 U.S. 307, 319 (1979). We give great deference to the trier of fact. Laster v.

State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). Thus, we will uphold the verdict

unless a juror “must have had reasonable doubt as to any essential element.” Id.

       “Courts give wide latitude to testimony given by child victims of sexual abuse.”

Gonzalez Soto v. State, 267 S.W.3d 327, 332 (Tex. App.—Corpus Christi 2008, no pet.).

The child complainant’s description of the abuse need not be “precise.” Id. This rule

“reflect[s] the important public policy that we cannot expect the child victims of violent

crimes to testify with the same clarity and ability as is expected of mature and capable

adults.” Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990).

       We measure sufficiency of the evidence by a hypothetically-correct jury charge.

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Under section 21.11(a)(1),

the essential elements that the State must prove are that the individual, with the intent to

arouse the sexual desires of any person, knowingly engaged in sexual contact with a child

younger than seventeen. TEX. PENAL CODE ANN. § 21.11(a)(1)(c) (West, Westlaw through

2013 3d C.S.); see Pizzo v. State, 235 S.W.3d 711, 717 (Tex. Crim. App. 2007). “Sexual

contact” is defined in 21.11(c) as “any touching by a person, including touching through

clothing, of the anus, breast, or any part of the genitals of a child.” TEX. PENAL CODE ANN.

§ 21.11(c)(1) (West, Westlaw through 2013 3d C.S.).

                                           III. ANALYSIS

       Torres argues that the State failed to prove that the alleged sexual contact testified

to at trial met the statutory definition of sexual contact under section 21.11(c)(1) because




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E.N. never used those words specifically.2 This is the only essential element of the crime

that Torres challenges.

          The State’s case consisted of testimony by Rangel, Ricardo, Williams, and E.N.

Throughout all of the testimony, E.N. herself never used the technical terms for any body

parts or female sexual organs.                 Rangel testified that E.N. told him that she was

“inappropriately touched” by her step-father.                  During Williams’s testimony, the State

admitted into evidence, without objection, the patient history of E.N.                         According to

Williams, the words written in the patient history are not a summary of the patient’s words

but rather the exact words of E.N. herself. The patient history indicated that E.N. told

Williams that Torres “touched my privates . . . . It happened more than once. . . . Eric[3]

came over and reached inside my jeans. He touch[ed] me on my private.” The patient

history also reflected that “Patient indicates female sexual organ by pointing.” Williams

explained on cross-examination that E.N. was pointing to her vagina area, but E.N. did

not call it a name during that interview. Ricardo of the Children’s Advocacy Center

testified that E.N. reported to him that Torres touched her “front” while pointing to her

vagina. Using anatomically correct drawings, E.N. circled the entire front body when

asked where else she was touched. She also circled the entire “back” to indicate where

she had been touched. The State asked E.N. the following questions during direct

examination:



          2
          We note that Torres cites section 21.11(c)(2) of the Texas Penal Code but then quotes the
language found under 21.11(c)(1). Based on the facts of the case, 21.11(c)(1) seems to be the applicable
section because it deals with the touching of the child’s genitalia by an actor whereas 21.11(c)(2) deals with
making the child touch the actor’s genitalia. See TEX. PENAL CODE ANN. § 21.11(c) (West, Westlaw through
2013 3d C.S.). Thus, we assume Torres meant to refer to section 22.11(c)(1).
          3   Appellant’s full name is Gabriel Eric Torres but according to the record, he goes by the name Eric
Torres.

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       [State]: Okay. Now, when you were talking to Ricardo, and when you were
                seen at the hospital, you used some different words. You used the
                word front, and I think you used the word private. What do those
                words mean to you? Your private part, is that your girl part?

       [E.N.]: Yes.

       [State]: Okay. So, [E.N.], if I use the word genitals, is that where he touched
                you with his hand?

       [E.N.]: Yes.

       [State]: Okay. And when he touched your genitals was that when you were
                sleeping with your mom?

       [E.N.]: Yes.

       [State]: Okay. So when we talk about that and you use the word your
                private or your front, I want to use your words. What word would
                you prefer that I use?

       [E.N.]: Front.

       [State]: Front. Okay. So let's use that word.

       Torres is essentially arguing that the evidence is legally insufficient simply because

E.N. herself never used words other than “front” and “back” during trial to describe her

genitalia. This argument has been specifically rejected by several courts, including this

court, on several occasions. See Villalon, 791 S.W.2d at 134; Gonzalez Soto, 267 S.W.3d

at 332. Viewing the record in its entirety, it is sufficiently clear what E.N. meant by her

“back” and her “front.” The prosecutor clarified what he meant by certain words and then

prompted E.N. to use the words she felt comfortable using. There is no requirement that

the child complainant use any specific language. See Gonzalez Soto, 267 S.W.3d at 332.

Even if the representations on the diagram did not specifically designate the sexual

organs, it did not exclude them, either. Viewed in the light most favorable to the State,




                                             5
the testimony of Rangel, Williams, Ricardo, and E.N. painted a clear picture of what E.N.

meant by her “front” and “private.”

       We conclude that the evidence is legally sufficient to prove that Torres engaged in

sexual contact with E.N. Furthermore, we conclude that when viewed in the light most

favorable to the prosecution, a reasonable juror could find each of the essential elements

of indecency with a child beyond a reasonable doubt; therefore, we will not disturb the

findings of the jury. See Laster, 275 S.W.3d at 517. We overrule Torres’s sole issue.

                                          IV. CONCLUSION

       We affirm the trial court’s decision.




                                                   NORA L. LONGORIA
                                                   Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
25th day of June, 2015.




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