Modified and Affirmed as Modified and Opinion Filed January 21, 2015




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-14-00293-CR

                                ISRAEL HUERTA, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 265th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F13-56173-R

                             MEMORANDUM OPINION
                          Before Justices Francis, Evans, and Stoddart
                                  Opinion by Justice Francis
       Israel Huerta appeals his conviction for aggravated sexual assault of a child. After

finding him guilty, the jury assessed punishment at eighteen years in prison. In two issues,

appellant claims the evidence is legally insufficient to support his conviction and the judgment

must be reformed. We modify the judgment and, as modified, we affirm.

       In his first issue, appellant contends the evidence is legally insufficient to support his

conviction because the complaining witness, N.G., could not remember many details about the

assault. Essentially, appellant claims N.G. was not credible.

       In a legal sufficiency review, we view all the evidence in the light most favorable to the

verdict and determine whether any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The
jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part

of a witness’s testimony. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

We do not engage in a second evaluation of the weight and credibility of the evidence but

“determine whether the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to the verdict.”

Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). The testimony of a child victim

alone is sufficient to support a conviction for aggravated sexual assault. Tear v. State, 74 S.W.3d

555, 560 (Tex. App.―Dallas 2002, pet. denied).

        A person commits an offense if he intentionally or knowingly causes the penetration by

any means of the sexual organ of a child younger than 14 years of age. TEX. PENAL CODE ANN.

§§ 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2014). Appellant was charged with causing the

penetration of N.G.’s sexual organ with his sexual organ.

        At trial, twelve-year-old N.G. said she was ten years old when her mom began dating

appellant. About a year later, she woke up early one morning because appellant was in her bed.

He took her clothes off, then removed his boxer shorts. According to N.G., he “put his thing

into” her “middle part.” N.G. kicked, screamed, and tried to get up but he forcefully held her

down. She said it felt uncomfortable and hurt. She was scared and afraid he was going to hurt

her family, especially her mom. Appellant promised her a puppy and told her it was a secret

between the two of them. He also told her they would “keep doing it and we weren’t going to

tell nobody.” When appellant left the room, N.G. went to the bathroom to wash. She then went

to her mother’s room and cried. N.G. also wrote a note saying she had been raped by appellant

and did not know what to do. She saw her younger sister in the living room and told her what

happened. When her aunt Rocio came by to pick her up for school, N.G. told her appellant had

raped her. Rocio called N.G.’s mother who came home from work. The two women drove her

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to the police station where the police interviewed her. Later, Rocio drove her to the hospital for

a physical exam.

       Dr. Matthew Cox is a pediatric physician who medically evaluates children in cases of

suspected abuse. He performed N.G.’s exam at Children’s Medical Hospital within hours of the

assault being reported. N.G. told the doctor what happened, including that “it hurt” but she had

no bleeding. In addition, she told Cox “water from [appellant] went inside” her. According to

Cox, N.G. had an abnormal genital examination, showing signs of a transection, or tear, of her

hymen, as well as swelling and tenderness. Cox concluded “there was definitely an injury that

was recent” and was consistent with a penetration type injury. Cox said anything causing

penetration of the vagina could tear the hymen, including “being impaled on something,” but

such an injury would not be caused by falling down or doing the splits       He was not able to

perform an internal exam based on N.G.’s level of discomfort and her anxiety.

       Although appellant claims we must reverse his conviction because N.G. could not

describe how it felt when she was raped and said she did not know if appellant’s penis was hard

or soft, we disagree. We do not expect or require a child victim 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). The jury observed N.G. as well as other witnesses, and concluded they

were credible. N.G.’s testimony established appellant placed his penis in her vagina and did so

when she was eleven years old. A pediatric physician described the tear in her hymen as

consistent with penetration. Reviewing all the evidence, including that detailed above, in the

light most favorable to the judgment, we conclude the jury could have rationally found each

element of the offense beyond a reasonable doubt. We overrule appellant’s first issue.




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        In his second issue, appellant contends the trial court’s judgment should be modified to

delete “Plus Fear” under the offense for which appellant was convicted. The State concedes the

judgment should be modified.

        Appellant was charged with aggravated sexual assault, including that he “did place

complainant in fear that death, serious bodily injury, and kidnapping would be imminently

inflicted on complainant.” At the conclusion of the trial, the trial court granted the State’s

motion to strike the portion alleging placing the complainant in fear. The trial court’s judgment

incorrectly states appellant was convicted of “aggravated sexual assault child under 14 plus

fear.” Because the judgment is incorrect, we sustain appellant’s second issue. We modify the

judgment to show appellant was convicted of “aggravated sexual assault child under 14” by

deleting the “plus fear” language. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26,

27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.―Dallas

1991, pet. ref’d).

        As modified, we affirm the trial court’s judgment.




Do Not Publish
TEX. R. APP. P. 47.2(b)
                                                     /Molly Francis/
140293F.U05                                          MOLLY FRANCIS
                                                     JUSTICE




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

ISRAEL HUERTA, Appellant                            On Appeal from the 265th Judicial District
                                                    Court, Dallas County, Texas
No. 05-14-00293-CR         V.                       Trial Court Cause No. F-1356173-R.
                                                    Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee                        Justices Evans and Stoddart participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
        We DELETE the language “Plus Fear” from the offense for which appellant was
        convicted.
As MODIFIED, the judgment is AFFIRMED.


Judgment entered January 21, 2015.




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