                                    NO. 07-11-00026-CR

                                IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                      JULY 27, 2011


                            RICHARD N. TREVINO, APPELLANT

                                            v.

                             THE STATE OF TEXAS, APPELLEE


                   FROM THE 426TH DISTRICT COURT OF BELL COUNTY;

                     NO. 65376; HONORABLE FANCY H. JEZEK, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                 MEMORANDUM OPINION


          Appellant, Richard N. Trevino, was convicted of aggravated sexual assault of a

child1 and sentenced to twenty years’ imprisonment. On appeal from his conviction, he

complains that the trial court erred by refusing to include a charge of the lesser-included

offense of criminal attempt to commit aggravated sexual assault of a child. We will

affirm.




          1
              TEX. PENAL CODE ANN. § 22.021(a) (West 2011).
                             Factual and Procedural History


      Because appellant does not challenge the sufficiency of the evidence to support

his conviction, we provide only so much of the factual background as is necessary to

provide a context and to address appellant’s issue. When she was in sixth grade, V.H.

was the only passenger on the school bus that appellant drove.           The two talked

regularly. After V.H. moved to a different bus route in the seventh grade, fifty-two-year-

old appellant made arrangements to take then thirteen-year-old V.H. to various extra-

curricular activities, making certain to take longer routes and to arrange stops so that

V.H. was either the last remaining or the only passenger on the bus. The two began to

talk regularly by phone and exchanged text messages and letters. Their relationship

eventually took on certain romantic characteristics.


      In the spring of 2009, appellant drove V.H. to a newly-developed neighborhood,

parked the bus, and began kissing and touching her as he had done in the past. He

removed V.H.’s pants and kissed and touched her ―genital area.‖ At a later encounter,

appellant once again removed her pants and penetrated her vagina with his penis for,

according to V.H., about fifteen seconds.


      Appellant was charged with aggravated sexual assault of a child.2 After hearing

evidence, the jury was instructed that ―[a] person commits the offense of Sexual Assault

if the person intentionally or knowingly causes the penetration of the sexual organ of a


      2
          Incompanion case, Trevino v. State, 07-11-00027-CR, appellant was convicted
of indecency with a child by contact. Because appellant’s appeals from these cases
were not consolidated on appeal and were not briefed together, we address the issue
raised in that case by separate opinion.
                                            2
child by any means.‖ See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i). The trial

court refused to include appellant’s proposed instruction on attempted aggravated

sexual assault.


       After the jury found appellant guilty, appellant appealed, complaining of the trial

court’s refusal to include the instruction on attempted aggravated sexual assault.

Specifically, appellant contends that V.H.’s equivocation when asked directly about

appellant’s erection and appellant’s earlier complaint to his doctor regarding ―erectile

difficulties‖ constitute evidence that would call on the trial court to include in its jury

charge a charge of attempted aggravated sexual assault of a child. We will overrule his

point of error and affirm the trial court’s judgment of conviction.


                         Standard of Review and Applicable Law


       Before an instruction on a lesser-included offense is warranted, an appellant

must satisfy two elements: (1) the lesser-included offense must be included within the

proof necessary to establish the offense charged, and (2) some evidence must exist in

the record that would permit a jury to rationally find that, if the defendant is guilty, he is

guilty only of the lesser-included offense. See Young v. State, 283 S.W.3d 854, 875

(Tex.Crim.App. 2009); Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994). While

a jury may selectively believe all or part of the evidence at trial, it is not sufficient that

the jury may disbelieve crucial evidence pertaining to the greater offense; there must be

some evidence directly germane to a lesser-included offense for the factfinder to

consider before an instruction on a lesser offense is warranted. Bignall, 887 S.W.2d at



                                              3
23.   In making this determination, we review all of the evidence presented at trial.

Young, 283 S.W.3d at 875.


                                         Analysis


        The State correctly concedes that appellant’s contention satisfies the first prong

of the two-pronged test. See id. Having reviewed the law on this issue, we conclude

that the State’s concession is well-taken and move on to the second prong where we

must determine if the record contains some evidence that, if appellant was guilty, he

was guilty only of the lesser-included offense of attempted aggravated sexual assault.

See id.


        Appellant points to two portions of the record to support his contention that the

evidence raised attempted aggravated sexual assault of a child: (1) V.H.’s testimony

that she did not notice whether appellant’s penis was erect at the time of penetration

and (2) appellant’s complaint made a year before the incident to his doctor about

erectile difficulties.


        A sister court has addressed this precise issue on a record containing similar

evidence. See Wilson v. State, 905 S.W.2d 46, 48 (Tex.App.—Corpus Christi 1995, no

pet.). In Wilson, the appellant contended that the trial court should have submitted to

the jury the lesser-included offense of attempted sexual assault because he presented

some evidence that he was unable to achieve an erection and, therefore, could not

have penetrated the complainant. Id. The court recognized that ―an erection is not a

necessary requisite for penetration.‖ Id. The court went on to explain how, even if the


                                             4
jury believed Wilson, the record contained no evidence that would permit the jury

rationally to find that, if he was guilty, he was guilty only of the lesser offense:


       Here, appellant could have been convicted if the jury found beyond a
       reasonable doubt that appellant penetrated complainant with any part of
       his penis. Simply because appellant may not have been able to have an
       erection, that possibility does not indicate that appellant did not penetrate
       complainant with his penis. If appellant placed his non-erect penis inside
       complainant, penetration still occurred.

Id. The court ultimately concluded that the trial court did not err in refusing to submit to

the jury the lesser-included offense of attempted sexual assault. Id.


       Similarly, here, we have V.H.’s testimony that she was unsure of whether

appellant’s penis was erect, and we have appellant’s prior complaint to his doctor that

he was experiencing ―erectile difficulties‖ a year before the incident in question

occurred. So, at most, the record shows that appellant may have had erectile difficulties

a year earlier. Such evidence has no bearing on whether appellant penetrated V.H.’s

vagina. See Frans v. State, No. 07-10-00384-CR, 2011 Tex. App. LEXIS 5202, at *1–2

(Tex.App.—Amarillo July 8, 2011, no pet. h.) (mem. op., not designated for publication)

(citing Vernon v. State, 841 S.W.2d 407, 409 (Tex.Crim.App. 1992), and Luna v. State,

515 S.W.2d 271, 273 (Tex.Crim.App. 1974)). Simply put, appellant’s ability to achieve

or maintain an erection is irrelevant to the issue of penetration. Such evidence, even if

believed, would not permit the jury to conclude that, if appellant was guilty, he was guilty

only of attempted aggravated sexual assault.


       Appellant has, therefore, failed to satisfy the second prong of the applicable test.

Accordingly, we overrule his sole issue on appeal


                                               5
                                      Conclusion


      Having overruled appellant’s sole issue, we affirm the trial court’s judgment.




                                                       Mackey K. Hancock
                                                            Justice



Do not publish.




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