Mario Favian Vasquez v. The State of Texas--Appeal from Criminal District Court No. 1 of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Mario Favian Vasquez

Appellant

Vs. No. 11-03-00136-CR -- Appeal from Dallas County

State of Texas

Appellee

The jury convicted Mario Favian Vasquez of aggravated sexual assault. The jury assessed appellant=s punishment at 70 years confinement and a $5,000 fine. We affirm.

In two issues on appeal, appellant argues that the evidence is legally and factually insufficient to support his conviction. In order to determine if the evidence is legally sufficient, we must review all of 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App.2004); Ross v. State, 133 S.W.3d 618 (Tex.Cr.App.2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). We review the fact finder=s weighing of the evidence and cannot substitute our judgment for that of the fact finder. Cain v. State, supra; Clewis v. State, supra. Due deference must be given to the jury=s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Jones v. State, 944 S.W.2d 642 (Tex.Cr.App.1996), cert. den=d, 522 U.S. 832 (1997). This court has the authority to disagree with the fact finder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@ Johnson v. State, supra at 9.

Appellant was indicted for the offense in April 1992; however, he was not tried for the offense until February 2003. At the time of trial, the victim, appellant=s stepdaughter, was 23 years old. The victim testified that, when she was 12 years old, she became pregnant. At that time, the victim told her mother that appellant had sexually abused her.[1] The victim stated that she had Aintercourse@ with appellant and that she knows what is meant by the term Aintercourse.@ The victim further stated that on one occasion appellant asked her to Alie down@ on his lap. The victim put her head in appellant=s lap, and he asked her to Ado a favor@ for him. The victim then unzipped appel-lant=s pants and put his penis in her mouth. The victim stated that appellant put his penis Ainside@ of her more than once. The victim further testified that appellant put his penis A[o]n her two privates.@ The victim defined her Atwo privates@ as her Avaginal@ and her Abutt.@

Appellant=s written statement was admitted into evidence.[2] In his statement, appellant admitted that the victim touched his penis with her hands and put his penis in her mouth. Appellant further stated that the victim Aput his penis in her back, and her anus.@

Appellant argues that the evidence is legally and factually insufficient to support his conviction because the evidence does not establish that he caused the penetration of the victim=s sexual organ as alleged in the indictment. Appellant specifically argues that, because the victim testified that appellant put his penis Aon@ her privates, the evidence is insufficient to show penetration of the female sexual organ. The victim testified, however, that she had Aintercourse@ with appellant, and she stated that she knows what is meant by the term Aintercourse.@ The victim further testified that appellant put his penis Ainside@ of her. Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Moreover, the evidence is not so weak as to render the verdict clearly wrong or manifestly unjust, nor is the evidence to the contrary so strong that the State=s burden of proof could not have been met. Appellant=s first and second issues on appeal are overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

January 31, 2005

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

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]The victim stated that she could not be sure that she was carrying appellant=s child because she also had had Aintercourse@ with her boyfriend.

[2]Appellant=s statement was written in Spanish and translated to English.