RUBEN MENDEZ v. THE STATE OF TEXAS--Appeal from 262nd District Court of Harris County

 NUMBER 13-05-108-CR

NUMBER 13-05-109-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  - EDINBURG

RUBEN MENDEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 262nd District Court of Harris County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Ya ez, and Garza

Memorandum Opinion by Justice Garza

Appellant, Ruben Mendez, was indicted on two charges of aggravated sexual assault of an eight-year-old child. See Tex. Pen. Code Ann. '' 22.011(c)(1), 22.021(a)(1)(B)(iii) (Vernon Supp. 2005).[1] Appellant pleaded not guilty to both charges. The jury found appellant guilty and assessed punishment at confinement for life on each charge. In one issue, appellant argues that the trial court erred in denying his motion for instructed verdict. We affirm.

By his sole issue, appellant contends the trial court erred in denying his motion for instructed verdict. In support of his contention, appellant argues that (1) the complainant=s testimony was not credible, and (2) without physical evidence, the State could not meet the reasonable doubt standard.

The standard of review for denial of a motion for instructed verdict is the same as that for challenges to the legal sufficiency of the evidence. Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990); see also Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). In a legal sufficiency review, this Court must examine the evidence presented in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense present beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). In making this determination, the reviewing court considers all the evidence admitted that will sustain the conviction, including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). Evidence is not rendered insufficient when conflicting evidence is introduced. Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996). The reviewing court must assume that the fact finder resolved conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution. Id.

On appeal, we measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant is being tried. Id.

To prove aggravated sexual assault of a child as to both charges, the State was required to prove that (1) on or about November 26, 2003, appellant did then and there intentionally or knowingly cause the sexual organ of the victim to contact or penetrate the sexual organ and mouth[2] of appellant; and (2) the victim was a child younger than seventeen years of age and was not the spouse of appellant; and (3) the victim was then and there younger than fourteen years of age. See Tex. Pen. Code. Ann. '' 22.011(c)(1), 22.021(a)(1)(B)(iii).

In support of these allegations, the State called the victim to testify. The victim was nine years old at the time of trial. She testified that, while her mother was at work, appellant would remove her shorts and panties down to her knees. Appellant would then remove his own pants, pull his underwear down to his knees and would then get on top of her. She testified that appellant=s Astick@ would touch her Acookie,@ but it would not penetrate her. She further testified that appellant touched her Amiddle part@ with his index finger and mouth and that appellant=s tongue would penetrate her sexual organ. The victim also testified that appellant Ajacked off@ in front of her and showed her the Awhite stuff@ that would come out of his Astick.@ Appellant even explained to her that the white stuff was called Asperm.@ The victim testified that appellant warned her that if she told, he would report that her mom uses drugs.

Appellant contends there is insufficient evidence because the victim=s testimony is not credible. He alleges it is possible that the victim fabricated the entire incident. As motive for lying, appellant points us to a specific incident where the victim was punished by her mother after appellant informed the victim=s mother that the victim had kissed a boy. In further support of his lack-of- evidence argument, appellant points to the lack of physical evidence of sexual assault and the lack of Aoutside@ witnesses.

First and foremost, the testimony of a sexual assault victim alone is sufficient to support a conviction, even if the victim is a child. See Tex. Code. Crim. Proc. Ann. art. 38.07 (Vernon 2005); see also Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978); Karnes v. State, 873 S.W.2d 92, 96 (Tex. App.BDallas 1994, no pet.). The unsophisticated language of a child is sufficient to support a conviction as long as the child victim has sufficiently communicated to the trier of fact that the offensive sexual touching occurred to a part of the body within the definition of section 21.01 of the penal code. Clark v. State, 558 S.W.2d 887, 889 (Tex. Crim. App. 1977); see Gallegos v. State, 918 S.W.2d 50, 54 (Tex. App.BCorpus Christi 1996, pet. ref'd). The testimony of a child victim of sexual abuse is given wide latitude by the courts and the description of the sexual abuse need not be precise. Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990). Given this latitude, no requirement exists that physical, medical, or other evidence be proffered to corroborate the victim's testimony. See Garcia, 563 S.W.2d at 928.

Viewing the evidence in the light most favorable to the verdict, and assuming the fact finder resolves conflicts in favor of the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt all of the essential elements of the offense of aggravated sexual assault of a child. Appellant=s sole issue is overruled.

The judgment of the trial court is affirmed.

_______________________

DORI CONTRERAS GARZA,

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 13th day of April, 2006.

[1] The charges were consolidated and tried to a jury.

[2] The second charge involved appellant causing E.G.=s sexual organ to contact appellant=s mouth.