Bartolo Perez Infante v. The State of Texas--Appeal from 218th Judicial District Court of Atascosa County

MEMORANDUM OPINION

No. 04-03-00682-CR

Bartolo Perez INFANTE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 218th Judicial District Court, Atascosa County, Texas

Trial Court No. 02-09-0248-CRA

Honorable Donna Rayes, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: September 8, 2004

AFFIRMED

A jury found defendant, Bartolo Infante, guilty of the felony offenses of aggravated sexual assault and indecency with a child. The trial court assessed his punishment at sixty years' and twenty years' confinement respectively. Defendant complains of his conviction in two issues on appeal. We affirm.

In his first issue on appeal, defendant contends that the evidence is insufficient to support his conviction for aggravated sexual assault of a child. Defendant argues that Pamela Button's testimony fails to corroborate the elements of the offense for aggravated sexual assault because it fails to mention: (1) the date; (2) the penetration of M.F.I.'s female sexual organ; and (3) defendant's male sexual organ. Although defendant does not specify whether he challenges the legal or factual sufficiency of the evidence, he requests relief in the form of an acquittal. Therefore, we construe his challenge as a legal sufficiency complaint. We review the legal sufficiency of the evidence under the appropriate standard of review. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see also Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). In addition, the testimony of a sexual assault victim, by itself, is sufficient evidence of penetration to sustain a conviction, even if that witness is a child. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon Supp. 2004); Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.--San Antonio 1994, pet. ref'd). Further, a victim's statement made to an outcry witness is, by itself, sufficient to support a conviction for aggravated sexual assault. Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.--Dallas 2002, pet. denied).

A person commits aggravated sexual assault when he or she "intentionally or knowingly . . . causes the penetration of the anus or sexual organ of a child by any means [or] causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor . . . if the victim is younger than 14 years of age." Tex. Pen. Code Ann. 22.021(a)(1)(B)(i), (iii) (Vernon Supp. 2004).

At trial, M.F.I. testified that defendant digitally penetrated her female sexual organ on a number of occasions. She also testified that defendant "put his penis inside [her] vagina" on two other instances. Button testified that M.F.I. informed her that "her father had touched her," and "that there had been two other occasions where . . . he would ask her to get out and lay on a blanket and remove her clothes and [have] intercourse with her." We conclude this evidence is legally sufficient to support the jury's verdict.

CHARGE ERROR

In his second issue on appeal, defendant contends that because the term "female sexual organ" is not defined by the Penal Code, the trial court erred by including the term in the jury charge and such inclusion amounted to an impermissible comment on the weight of the evidence.

Defendant argues that inclusion of the term "female sexual organ" within the jury charge is unduly prejudicial because it is not defined by statute, and accordingly, a hypothetically correct jury charge would not contain this term. Moreover, defendant contends that including this term in the jury charge, when the State had not adequately proved all of the elements of aggravated sexual assault, amounted to an inappropriate comment on the weight of the evidence. We disagree. Although defendant is correct that the Penal Code does not define "female sexual organ," "terms not legislatively defined are to be understood as ordinary usage allows, and jurors may give them any meaning which is accepted in common parlance." Breckenridge v. State, 40 S.W.3d 118, 123 (Tex. App.--San Antonio 2000, pet. ref'd). Further, provisions of the Penal Code are to "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. Accordingly, we conclude the trial court did not err by including the term "female sexual organ" and such inclusion did not amount to a comment on the weight of the evidence. CONCLUSION

We overrule defendant's issues on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH