                             NUMBER 13-07-00563-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


MARIO ALBERTO ADAIR,                                                          Appellant,

                                            v.

THE STATE OF TEXAS,                                                            Appellee.


                     On appeal from the 36th District Court
                        of San Patricio County, Texas.


                          MEMORANDUM OPINION

                 Before Justices Rodriguez, Garza, and Vela
                  Memorandum Opinion by Justice Garza

       Appellant, Mario Alberto Adair, was charged by indictment with three counts of

indecency with a child, a second degree felony, and six counts of aggravated sexual

assault, a first degree felony. See TEX . PENAL CODE ANN . § 21.11(a)(1), (d) (Vernon 2003),

§ 22.021(a)(1)(B), (e) (Vernon Supp. 2007). A jury convicted appellant on all nine counts

contained in the indictment. Appellant elected for the trial court to assess his punishment.
He was subsequently sentenced to forty years’ imprisonment for aggravated sexual assault

and twenty years’ imprisonment for indecency with a child. The trial court did not impose

any fines and ordered the sentences to run concurrently. By one issue, appellant argues

that the evidence adduced at trial was legally and factually insufficient to support his

conviction. We affirm.

                             I. FACTUAL AND PROCEDURAL BACKGROUND

        On March 6, 2007, appellant was charged by indictment with three counts of

indecency with a child and six counts of aggravated sexual assault. See id. §§ 21.11(a)(1),

22.021(a)(1)(B). The jury trial commenced on August 13, 2007. At trial, the State called

five witnesses—B.A., the child victim, A.A., appellant’s daughter, B.A.’s mother, Christian

Segura, a detective for the Yuma Police Department in Arizona, and Steve Hutchins, a

criminal investigator with the San Patricio County Sheriff’s Office—while appellant did not

call any witnesses.1

a. B.A’s Testimony

        B.A. was fourteen years old at the time of trial and lived with her mother, sister, and

brother, M.A.A., in Yuma, Arizona. While her family was living in Yuma, her mother and

appellant got divorced. After the divorce, appellant moved to Ingleside, Texas. B.A. and

her siblings would visit appellant in Ingleside during the summer and during Christmas

breaks from school. The events in question transpired during a visit in the summer of

2005.       While staying at appellant’s house in Ingleside, she and her siblings would

occasionally sleep in appellant’s room. When asked about the events in question, B.A.



        1
            W e do not detail Hutchins’s testim ony because it does not affect the disposition in this case. See
T EX . R. A PP . P. 47.1.
                                                       2
testified to the following:

       Q [the State]:         I want to talk to you about some of the time—or I guess
                              one time that you slept in your dad’s bedroom.
                                      Right when you got back from Arizona to
                              Ingleside did your dad touch you inappropriately?

       A [B.A.]:              Not as soon as we got there.

       Q:                     About how long was it from the time that you got there
                              until the time he did that?

       A:                     About a week later.

       Q:                     And where did this take place in the house?

       A:                     My dad’s room.

       Q:                     Was this daytime or nighttime?

       A:                     Nighttime.

       Q:                     What did your dad do to you?

       A:                     He put his mouth on my private. He put his penis in my
                              butt, he put his fingers in my private, and he put his
                              mouth on my breast, and he put his fingers on my
                              breast.

               ....

       Q:                     By private[,] what are you talking about?

       A:                     My vagina.

B.A.’s brother and sister were in the room sleeping while the alleged offenses transpired.

The room was dark. Appellant and her brother usually slept on appellant’s queen-sized

mattress while she and her sister slept on a mattress on the floor. B.A. was lying beside

her sister when the alleged offenses happened, but appellant kept moving her away from

her sister. B.A. testified that appellant sexually assaulted her again towards the end of the

summer of 2005.
                                               3
         When asked about her outcry statement, B.A. stated that she did not tell anyone in

Ingleside about the incidents because she was scared of getting hurt and ruining

everyone’s lives. Eventually, on August 22, 2005, B.A. confided in her mother after

watching a movie on television about a girl who was molested and did not tell anyone

about it. After telling her mother about the incidents, B.A. was taken to the emergency

room.2

         Later, B.A. met Detective Segura and gave him her statement at Amberly’s Place.3

Detective Segura then instructed B.A. to record telephone conversations with appellant in

order to “make him admit what he did.” Detective Segura assisted B.A. with recording one

telephone conversation she had with appellant; however, appellant did not answer the

phone on this occasion. B.A. later spoke with appellant over the phone on three different

occasions, and she recorded each conversation. After making the recordings, B.A. turned

them over to Detective Segura. B.A. further testified that the voices on the recordings were

of her and appellant, and upon questioning by the State, B.A. indicated that she was not

married to appellant.

         On cross-examination, B.A. stated that she could not remember what she was

wearing on the nights that the incidents occurred. She also noted that the mattress on

which she and her sister slept was a regular mattress that was pulled off another bed in the

house and that she and her sister shared a blanket while sleeping on the mattress. B.A.


         2
         The record does not contain any reports pertaining to any m edical exam ination of B.A. when she
was taken to the em ergency room . In fact, the record suggests that B.A. was only interviewed by law
enforcem ent authorities when she arrived at the em ergency room .

         3
           B.A. testified that Am berly’s Place is “a place where kids go when they have been raped or hurt .
. . .” Detective Segura later described Am berly’s Place as a “m ultidisciplinary center . . . . It’s a one-stop shop
for the investigations of crim es against children. The place you do— you do the interviews there. You can do
the m edical exam . You get counseling, crisis intervention, things like that.”
                                                         4
admitted that the reason the children were sleeping in appellant’s room was because the

air conditioner in the house had stopped working. B.A. also admitted that appellant pulled

her shorts down and pulled her shirt up halfway rather than fully removing all of her clothing

while the alleged incidents took place. Finally, B.A. testified that when she recorded the

conversations with appellant, her mother was in the room.

b. Testimony of B.A.’s Mother

         After she and appellant separated in 2003, appellant moved back to Ingleside,

where the family had resided previously. The couple’s divorce was finalized in 2004. The

couple agreed to a joint custody arrangement whereby appellant could come visit the

children any time he liked. The arrangement also allowed for the children to visit appellant

during the summer, Christmas, and sometimes spring break. During the summer of 2005,

the children visited appellant in Ingleside from May until August. After returning to Arizona,

B.A. called her while she was at work at approximately 8:00 p.m. on August 22, 2005, to

inform her of the alleged incidents that had transpired at appellant’s home in Ingleside.

After she received the phone call from B.A., she left work and took B.A. to the emergency

room. While at the hospital, B.A. spoke to several different police officers regarding the

incidents. Later, Detective Segura came over to her house to interview her regarding

B.A.’s allegations. Subsequently, B.A. was interviewed by police officers at Amberly’s

Place.

c. A.A.’s Testimony

         A.A. currently lives with her mother, B.A., and M.A.A. in Yuma, Arizona. When the

children would visit appellant during the summer and at Christmas, the children

occasionally slept in appellant’s bedroom. A.A. would take the mattress from her bed and

                                              5
place it in appellant’s bedroom. The mattress had pillows and blankets on it, and she and

B.A. would sleep together on the mattress. They mostly slept in appellant’s bedroom

because the home air conditioning unit was broken. However, A.A. stated that appellant

had purchased a “portable air condition thing that he put on his window” and that she

remembered it being used only during the summer of 2005.

        With respect to the nights in question, A.A. recalled one night where she woke up

to find B.A. in appellant’s bed. B.A. usually wore shorts and a t-shirt to bed while staying

at appellant’s home. A.A. testified that she had heard the recorded conversations made

by B.A. and that the voices on the recording were that of B.A. and appellant.

        On cross-examination, A.A. admitted that her dog Mini, a Chihuahua, often slept on

the mattress with her and B.A. when they stayed at appellant’s home. She did not recall

Mini sleeping anywhere other than on the mattress with her and B.A while they stayed at

appellant’s home.

d. Detective Segura’s Testimony

        Detective Segura has worked for the Yuma Police Department for twenty years with

about 300 hours of training working “crimes against children.”4 Detective Segura has

worked in “[c]lose to if not over a thousand [child sexual abuse] cases.” Detective Segura

described the interview process with the child victim and mentioned that during the course

of an investigation, he tries to obtain corroborative evidence—DNA evidence, actual

eyewitness accounts, or confrontational phone calls—to support the child victim’s outcry

statement. Detective Segura described a confrontational phone call as “a call where the


        4
          W hen asked what “crim es against children” are, Detective Segura responded that the description
included “[y]our m olests [sic], sexual assaults, sexual abuse, touchings, things like that, also som etim es child
abuse, the physical abuse.”
                                                        6
victim makes a telephone call to the alleged person and then they basically get them to

admit to what happened.” He stressed that he gives the child victim explicit instructions

regarding what to say when they are talking to the alleged perpetrator. He worked with

B.A. to develop a theme for talking to appellant about the incidents. Detective Segura

brought to court the microcassette recorder that B.A. had used to record her conversations

with appellant. Detective Segura testified that while speaking to B.A. at Amberly’s Place

on August 25, 2005, she agreed to make a confrontational call to appellant.

       B.A. made phone calls to appellant while Detective Segura was present, but no one

answered those calls. Detective Segura then allowed B.A. to take the microcassette

recorder home to record calls herself. Detective Segura received a phone call from B.A.’s

mother a couple of days later indicating that they had recorded three phone calls with

appellant. B.A. and her mother returned the microcassette recorder to Detective Segura

when he visited them later the same day.

       The State then offered to introduce the recordings of the confrontational calls into

evidence. Detective Segura testified that: (1) he had listened to the tape; (2) no changes

had been made to the tape since it was given to him by B.A. and her mother; and (3) the

recording to be heard was a copy he had made for the State from the original given to him

by B.A. and her mother.        Appellant made no objections to the introduction of the

recordings.

e. The Recordings

       The State then introduced the recordings of the telephone conversations between

B.A. and appellant into evidence. The recordings contained the following exchanges which

are pertinent to our review:

                                            7
[B.A.]:          I know what you have been doing to me in the night. I’m not
                 mad. I’m not going to tell any [sic] anyone or anything, but I
                 know.

[Appellant:] Yeah, I’m listening.

[B.A.]:          And like [sic] touch me in the private part because I don’t like
                 it.

[Appellant]: (Inaudible).

[B.A.]:          So I want you to tell me you won’t do it. Hello?

[Appellant]: I’m—I’m listening.

          ....

[B.A.]:          Hey, dad, you know what we talked about?

[Appellant]: Yeah.

[B.A.]:          I want you to like apologize.

[Appellant]: Yeah, hum, you know, this is something we need to talk about
             in person.

[B.A.]:          No, dad. I want you to apologize. I want—because, dad, I
                 really want you to apologize on the phone. Nobody is here.

[Appellant]: Yeah, I apologize (inaudible). I apologize for (inaudible).

[B.A.]:          Like, promise. I want you to promise out loud.

[Appellant]: I promise, I said it before (inaudible).

[B.A.]:          Why did you do it anyway?

[Appellant]: Well, [B.A.], we can talk about this later on in person.

[B.A.]:          Because I have been having bad dreams because I watched
                 a movie.

[Appellant]: Yeah?

[B.A.]:          And—yeah.

                                         8
[Appellant]: Yeah. Well, the thing about it is (inaudible). Well, like I said,
             it’s something we need to talk in person later on (inaudible)
             probably about a year from now (inaudible).

          ....

[Appellant]: (Inaudible). Yeah, you know, about what you were saying
             earlier, I know you want some answers, need some answers
             but it’s something very personal that I think that, you know
             (inaudible).

          ....

[B.A.]:          Dad, I don’t want to see you if you’re going to be touching my
                 private again.

[Appellant]: What have I told you earlier, [B.A.]?

[B.A.]:          Oh, I don’t know.

[Appellant]: (Inaudible) I said it’s over. It’s over.

[B.A.]:          You should have planned (inaudible) and I wouldn’t be having
                 to ask you all of these questions. It’s not my fault it happened.
                 It’s yours.

[Appellant]: Yeah.

          ....

[B.A.]:          No, dad. I’m just saying I don’t want it to happen to any more
                 children because then you are going to get caught, and I don’t
                 want you in jail. So I want you to say it on the phone. I want
                 you to say it [sic] I will never do it—I will never molest any other
                 children or me again. Say it, or I will be so mad at you. You
                 don’t want—

[Appellant]: I’ve already told you. I said no, no, no.

[B.A.]:          I want you to promise. I want you to say it. I want you to say
                 I promise I won’t do it again.

[Appellant]: I promise it will not happen again.

          ....

                                          9
       [B.A.]:       I mean, do you want to tell mom?

       [Appellant]: No.

After the recordings were published to the jury, appellant objected, contending that the

recordings were never properly entered into evidence. However, the trial court denied his

objection.

       Appellant rested his case without calling any witnesses or presenting any evidence.

The jury subsequently convicted appellant on all nine counts contained in the indictment.

On September 10, 2007, the trial court sentenced him to forty years’ imprisonment in the

Texas Department of Criminal Justice-Institutional Division for the aggravated sexual

assault conviction. Appellant also received twenty years’ confinement for the indecency

with a child conviction. The sentences were ordered to run concurrently. On September

10, 2007, appellant timely filed his notice of appeal. Also, on September 10, 2007, the trial

court certified appellant’s right to appeal. This appeal ensued.

                                  II. STANDARD OF REVIEW

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

prosecution to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,

318-19 (1979); Watson v. State, 204 S.W.3d 404, 414-17 (Tex. Crim. App. 2006). The trier

of fact is the sole judge of the facts, the credibility of the witnesses, and the weight given

to testimony. See TEX . CODE CRIM . PROC . ANN . art. 38.04 (Vernon 1979); Jackson, 443

U.S. at 318-39; Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.–Houston [14th Dist.]

2000, pet. ref'd). We do not reevaluate the weight and credibility of the evidence, whether

circumstantial or direct, nor do we substitute our own judgment for that of the trier of fact.

                                             10
Mosley v. State, 141 S.W.3d 816, 821 (Tex. App.–Texarkana 2004, pet. ref'd); Beckham,

29 S.W.3d at 151. Instead, we consider whether the jury reached a rational decision.

Beckham, 29 S.W.3d at 151.

        In a legal sufficiency review, each fact need not point directly and independently to

the guilt of the appellant, as long as the cumulative force of all the incriminating

circumstances is sufficient to support the conviction. Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007) (citing Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App.

1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993); Alexander v. State,

740 S.W.2d 749, 758 (Tex. Crim. App. 1987)). Circumstantial evidence is as probative as

direct evidence in establishing the guilt of an actor; circumstantial evidence alone can be

sufficient to establish guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).

On appeal, both circumstantial and direct evidence cases are examined using the same

standard of review. Id.

        We measure the sufficiency of the evidence by the elements of the offense as

defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002,

pet. ref'd). "Such a charge would accurately set out the law, would be authorized by the

indictment, and would not unnecessarily increase the State's burden of proof.” Malik, 953

S.W.2d at 240. The elements for indecency with a child are: (1) appellant intentionally and

knowingly engaged in sexual contact with a child or caused the child to engage in sexual

contact;5 (2) the child was younger than seventeen years old; and (3) the child was not

        5
           Section 21.11(c) of the penal code 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” or “any touching of any
part of the body of a child, including touching through clothing with the anus, breast, or any part of the genitals
of a person” if intended to “arouse or gratify the sexual desire of any person.” T EX . P EN AL C OD E A N N . §
                                                       11
appellant’s spouse. TEX . PENAL CODE ANN . § 21.11(a)(1). The elements for aggravated

sexual assault are appellant intentionally and knowingly: (1) caused the penetration of the

anus or sexual organ of a child by any means; or (2) caused the sexual organ of a child to

contact or penetrate appellant’s mouth, anus, or sexual organ. Id. § 22.021(a)(1)(B).

        In a factual sufficiency review, we review the evidence in a neutral light to determine

whether the evidence is so weak that the jury's verdict seems clearly wrong and manifestly

unjust. Watson, 204 S.W.3d at 414-15. After considering all of the evidence in the record

related to appellant's sufficiency challenge, we compare the evidence weighed by the jury

that tends to prove the elemental fact in dispute with the evidence that tends to disprove

it. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997) (en banc). This Court

will not reverse the jury's verdict unless we can say with some objective basis in the record

that the great weight and preponderance of the evidence contradicts the verdict. Watson,

204 S.W.3d at 415.

                                               III. ANALYSIS

        By his sole issue on appeal, appellant contends that the evidence adduced at trial

was legally and factually insufficient to support his convictions. We disagree.

        In arguing that the evidence is legally and factually insufficient, appellant states that

there was no physical evidence of sexual abuse, there was no corroborating testimony that

these incidents actually occurred, and the jury was moved by emotion; therefore, its verdict



21.11(c) (Vernon 2003). The requisite specific intent to arouse or gratify the sexual desire of any person m ay
be inferred from a defendant’s conduct, his rem arks, and all surrounding circum stances. McKenzie v. State,
617 S.W .2d 211, 216 (Tex. Crim . App. [Panel Op.] 1981); see also Jimenez v. State, No. 04-06-00840-CR,
2007 Tex. App. LEXIS 5567, at *11 (Tex. App.–San Antonio July 18, 2007, no pet.). No oral expression of
intent, nor is visible evidence of sexual arousal required. See McKenzie, 617 S.W .2d at 216; see also Solis
v. State, No. 13-03-00262-CR, 2006 Tex. App. LEXIS 6216, at *5 (Tex. App.–Corpus Christi July 20, 2006,
no pet.).
                                                     12
is against the great weight and preponderance of the evidence. Appellant further argues

that the confrontational telephone calls made by B.A. do not contain an admission from

appellant that he sexually assaulted B.A and that the police and B.A. tried to entrap him.

Appellant also questions the authenticity and credibility of the recording presented at trial.

       We begin by noting that the testimony of a child victim alone is sufficient to support

a conviction for sexual abuse. See TEX . CODE CRIM . PROC . ANN . art. 38.07(a), (b)(1)

(Vernon 2005); see also Tear v. State, 74 S.W.3d 555, 560 (Tex. App.–Dallas 2002, pet.

ref’d); Empty v. State, 972 S.W.2d 194, 196 (Tex. App.–Dallas 1998, pet. ref’d); Ruiz v.

State, 891 S.W.2d 302, 304 (Tex. App.–San Antonio 1994, pet. ref’d); Karnes v. State, 873

S.W.2d 92, 96 (Tex. App.–Dallas 1994, no pet.) (noting that a child victim’s testimony alone

is sufficient evidence of penetration to support a conviction for aggravated sexual assault);

Kimberlin v. State, 877 S.W.2d 828, 831 (Tex. App.–Fort Worth 1994, pet ref’d).

Therefore, because B.A. testified as to both incidents of sexual abuse, her testimony would

be enough to support appellant’s convictions without any corroboration.

       In any event, the evidence adduced at trial satisfies the elements of each of the

alleged criminal offenses. B.A. testified that appellant: (1) put his mouth on her vagina;

(2) put his penis in her butt; (3) put his fingers in her vagina; and (4) put his mouth and

fingers on her breasts. B.A. also testified that she was fourteen years old at the time she

gave her testimony, thus establishing that she was under seventeen years of age when the

incidents occurred.    In addition, B.A. stated that she was not appellant’s spouse.

Moreover, after conducting several interviews with B.A. at her home and at Amberly’s

Place, Detective Segura, a detective who had worked on approximately 1,000 child sexual

abuse cases, also concluded that B.A. had been sexually assaulted. A.A. testified that

                                             13
appellant had an air conditioning unit in the window of his room, which the State argued

at trial could have kept anyone from hearing what was transpiring in appellant’s bedroom

on the nights in question.

        In the confrontational phone calls, appellant appears to apologize and promise to

not sexually abuse B.A. again. In fact, appellant specifically states that “[i]t’s over.”

Though the confrontational telephone calls do not conclusively establish that appellant

sexually abused B.A., they do corroborate B.A.’s testimony and allow the jury to make an

inference as to why: (1) appellant would apologize for and promise not to sexually abuse

B.A. again; (2) appellant would state that “[i]t’s over,” that it is his fault, and that it will never

happen again; and (3) appellant wanted B.A. to wait a year to discuss the incidents with

B.A. See Hooper, 214 S.W.3d at 13, 15-16 (holding that the jury, as the trier of fact, may

draw reasonable inferences from the facts and that the reviewing court must give

deference to such inferences). It was not incumbent upon the State to introduce any

doctor’s reports or examination reports by treating physicians, as suggested by appellant,

because circumstantial evidence alone may support a conviction and it is the cumulative

force of the evidence that guides our review. See id. at 13; Guevara, 152 S.W.3d at 49.

        Appellant also alleged that B.A. and the police entrapped him, but this argument has

been inadequately briefed on appeal. See TEX . R. APP. P. 38.1(h). With respect to

appellant’s objections to the authenticity and credibility of the recordings of the

confrontational calls offered at trial, we conclude that appellant waived such objections by

not raising them first with the trial court.6 See TEX . R. APP. P. 33.1(a) (as a prerequisite to

        6
           Rule 1003 of the Texas Rules of Evidence authorizes the use of copies to the sam e extent as
originals unless one questions authenticity or dem onstrates that it would be unfair to adm it the duplicates.
See T EX . R. E VID . 1003; see also Hood v. State, 944 S.W .2d 743, 747 (Tex. App.–Am arillo 1997, no pet.).
However, appellant’s trial counsel never objected to the adm ission of the recordings before they were
                                                     14
presenting a complaint for appellate review, the record must show that the complaint was

first made to the trial court).

        Based on the foregoing, we conclude that the jury was rationally justified in finding

guilt beyond a reasonable doubt and that the jury’s verdict is not against the great weight

and preponderance of the evidence. See Watson, 204 S.W.3d at 414-15; Beckham, 29

S.W.3d at 151. Therefore, the evidence adduced at trial is legally and factually sufficient

to support appellant’s convictions. Accordingly, we overrule appellant’s sole issue.

                                      IV. CONCLUSION

        We affirm the judgment of the trial court.




                                                     DORI CONTRERAS GARZA,
                                                     Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 21st day of August, 2008.




presented to the jury.
                                             15
