Elias Espinoza v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00061-CR
Elias ESPINOZA,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 1996-CR-4825
Honorable Sid L. Harle, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: March 5, 2003

AFFIRMED

A jury found Elias Espinoza ("Espinoza") guilty of aggravated sexual assault of a child and indecency with a child. Espinoza raises five points of error in this appeal, contending: (1) the evidence is legally and factually insufficient; (2) admission of a photograph constituted fundamental error; (3) admission of extraneous offense evidence constituted fundamental error; (4) failure to include a limiting instruction concerning an extraneous offense constituted fundamental error; and (5) the definition of penetration in the jury charge was improper. We affirm the trial court's judgment.

In his first point of error, Espinoza asserts that the evidence presented by the State at trial is legally and factually insufficient to prove that he penetrated the victim. In considering the legal sufficiency of the evidence, we review 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 offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996). In a factual sufficiency review, we consider all the evidence without the prism of "in the light most favorable to the prosecution" and set aside the verdict only if it is "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). While we may disagree with the jury's determination, a factual sufficiency review must still be "appropriately deferential" to avoid substituting our judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).

In a prosecution for aggravated sexual assault, the State must prove penetration as an essential element of the offense. TEX. PEN. CODE. ANN. 22.021(a)(1)(B) (Vernon Supp. 2003). A person commits the offense of aggravated sexual assault of a child if he intentionally or knowingly causes the penetration of the female sexual organ by any means, and the victim is younger than fourteen years of age. See TEX. PEN. CODE. ANN. 22.021 (Vernon Supp. 2003). The term penetration is not defined in the Penal Code. See, e.g., TEX. PEN. CODE. ANN. 1.07 (Vernon 1994). However, the Code provides that its provisions "shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code." TEX. PEN. CODE. ANN. 1.05 (Vernon 1994). Case law provides that penetration in the context of aggravated sexual assault may mean "to enter into" or "to pass through." See Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992) (citing Webster's Third New International Dictionary, p. 1670 (Merriam-Webster 1981)). Penetration does not have to be of any particular depth, and any penetration, no matter how slight, is sufficient to satisfy the requirement of the statute. In re H.R.A., 790 S.W.2d 102, 104 (Tex. App.-Beaumont 1990, no writ). In clarifying the application of the term penetration in the context of sexual assault of a child, the Texas Court of Criminal Appeals has held that contacting the genital area of a female that is "not usually exposed to view, even in nakedness, is a significant intrusion beyond mere external contact." Vernon, 841 S.W.2d at 409. The requirement of penetration is satisfied as long as contact with the female sexual organ "could reasonably be regarded by ordinary English speakers as more intrusive than contact with outer vaginal lips." Id. Penetration of the vaginal canal is not required. Id.

In this case, the victim described specific incidents occurring while she was nine or ten years old, where Espinoza would order her to take off her clothes and when she complied he would put his penis on her, "like inside," and start rubbing up and down. To further clarify, the prosecution asked if by inside, the victim meant inside the vaginal opening, to which she responded in the affirmative and used hand gestures to illustrate Espinoza's assault.

While the victim did not testify that Espinoza placed his penis in her vaginal canal, the victim testified that Espinoza placed his penis inside her sex organ which is considered penetration as required by statute. A jury, using the ordinary meaning of the term penetration, could have found the evidence sufficient to support conviction. Appellant's first point of error is overruled.

In his second point of error, Espinoza argues that the admission of a photograph of the victim at the age of 5 was fundamental error. During trial, Espinoza did not object to the admission of the photograph of the victim, but merely objected to the portion of the photo depicting a person dressed as Santa Claus as prejudicial. The trial court sustained the objection and ordered the extraneous portion of the photo redacted. Because Espinoza did not object to the portion of the photo that was actually admitted, he failed to preserve this issue for consideration on appeal. See Tex. R. App. P. 33.1. Unless the ground of error made on appeal is the same as the objection made at trial, the complaint is not preserved for review. Garcia v. State, 630 S.W.2d 727, 729-30 (Tex. App.--San Antonio 1982, pet. ref'd). We decline Espinoza's request that we characterize the admission of the redacted photo as fundamental error. See Thornton v. State, 994 S.W.2d 845, 853-54 (Tex. App.--Fort Worth 1999, pet. ref'd). Espinoza's second point of error is overruled.

In his third point of error, Espinoza contends the trial court committed fundamental error in admitting evidence of an extraneous offense that occurred in another county. Espinoza failed to object to the admission of the evidence at trial, and as a result, he failed to preserve this issue for appeal. See Tex. R. App. P. 33.1. Nonetheless, Espinoza argues that the admission of the evidence constituted fundamental error, which would allow this court to consider this error absent proper preservation of error for appeal. However, it is still incumbent upon the appellant to bring forth argument and authority to support the points of error in his brief. See Milligan v. State, 554 S.W.2d 192, 195 (Tex. Crim. App. 1977). Espinoza does not cite any authority for his contention that admission of an extraneous offense constitutes fundamental error, and we were unable to locate any authority to support his contention. Absent any support, the allegation of error is not reviewable on appeal. Kirchner v. State, 739 S.W.2d 85, 87 (Tex. App.-San Antonio 1987, no pet.). Consequently, Espinoza's third point of error is overruled.

In his fourth point of error, Espinoza contends the trial court erred by failing to include a limiting instruction concerning the extraneous offense in the jury charge, which permitted the jury to convict the appellant on the basis of an extraneous offense. As a result, Espinoza contends that the charge constituted fundamental error. Espinoza appears to argue that because no penetration occurred in Bexar County, he is being convicted by the jury based on the sexual assault that occurred in Kenedy Texas. As previously discussed, the evidence was factually and legally sufficient to establish the element of penetration based on incidents which took place in Bexar County. Moreover, it was Espinoza's burden to request a limiting instruction concerning the extraneous evidence, and he failed to do so. No case law supports Espinoza's argument that failure to give a limiting instruction amounts to fundamental error. See Webb v. State, 760 S.W.2d 263, 275 (Tex. Crim. App. 1988) (citing Cyrus v. State, 500 S.W.2d 656 (Tex. Crim. App. 1973)). Espinoza's fourth point of error is overruled.

In his fifth and final point of error, Espinoza contends the trial court committed fundamental error by failing to provide a proper definition of penetration in the jury charge. Espinoza specifically contends that penetration was improperly defined which resulted in an improper comment on the weight of the evidence. In the jury charge, the trial court instructed that "penetration is complete no matter how slight." This exact language has been held to be a proper instruction in the charging instrument of a sexual assault case. See Rawlings, 874 S.W.2d at 744. Furthermore, such an instruction cannot be considered a definition of penetration, but rather is a correct statement of the law. See Wilson v. State, 905 S.W.2d 46, 48-49 (Tex. App.--Corpus Christi 1995, no pet.) (citing Rawlings, 874 S.W.2d at 744); Zuniga v. State, 811 S.W.2d 177, 180 (Tex. App.--San Antonio 1991, no pet.). Espinoza himself concedes that the jury instruction may meet the requirement under current case law. Espinoza's fifth point of error is overruled.

The judgment of the trial court is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH