SANTIAGO GAMEZ, Appellant v. THE STATE OF TEXAS, Appellee

Annotate this Case

AFFIRMED; Opinion Filed July 10, 2007.

In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00469-CR
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SANTIAGO GAMEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-26064-TP
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OPINION
Before Justices Whittington, Francis, and Lang
Opinion By Justice Lang
        Santiago Gamez appeals the trial court's judgment convicting him of aggravated sexual assault of a child younger than fourteen years of age. The jury found Gamez guilty and assessed his punishment at fifteen years of imprisonment.
        In nine issues, Gamez generally argues three points: (1) the trial court erred when it admitted the hearsay testimony of six witnesses; (2) the trial court erred when it denied his motion for mistrial; and (3) the evidence is legally and factually insufficient.
        We conclude Gamez failed to preserve for appeal any error with respect to three of the witnesses' testimony. Even if the testimony of the remaining three witnesses was error, Gamez failed to show he was harmed by any error in admitting their testimony. Also, the trial court did not err when it denied Gamez's motion for mistrial. Finally, the evidence is legally and factually sufficient to support Gamez's conviction. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND

        In February 2005, O.G. lived with her parents, her older brother, Gamez, her two sisters, two additional brothers, Gamez's pregnant girlfriend, and Gamez's daughter. Gamez worked with his father and financially contributed to the family.
        On a Sunday, in February 2005, O.G.'s mother sent O.G. to her room for misbehaving. O.G. was twelve years old. Gamez came into the room and asked O.G. if she “wanted to do it.” O.G. said “No.” Gamez said “okay,” took O.G.'s hands and caused her to fall to the floor, removed O.G.'s clothes, and then, he removed his own clothing. O.G. became scared, starting to scream, but Gamez told her to stop screaming. Gamez got on top of O.G., holding her down, and “stuck his thing into [hers].” O.G. told Gamez to stop, tried to hit him, and cried because it hurt, but Gamez did not stop. This lasted for a few minutes. Gamez told O.G. “he could do the sex better but [she] had gotten scared.” O.G. put on her clothes, left her bedroom, and told their mother what Gamez had done. Their mother told Gamez to stop and Gamez “got mad and went into his room and started to hit the wall very hard.” Afterward, O.G. told her sister, G.G., who was eighteen years old what Gamez had done. The sisters cried and then, washed their faces so their parents would not know they had been crying.
        On Monday, February 28, 2005, E.M. and M.H. were sitting with O.G. on the school bus. They observed that O.G. was sad and crying. They asked O.G. what was wrong, but she would not tell them. Later, E.M. and M.H. found O.G. in the school bathroom crying. O.G. told E.M. and M.H. that, on Sunday, her brother, Gamez, raped her. After their conversation, E.M. and M.H. went to the school counselor, James Harlow.         Harlow called O.G. to his office and told her a couple of her friends said she was having trouble at home. O.G. looked away toward the ground and did not answer. Harlow asked O.G. if she was having trouble with one of her brothers and she began to nod her head. He asked if her brother was touching her inappropriately and she nodded her head. Then, he asked if her brother was touching her in ways that he should not and O.G. continued to nod her head. O.G. indicated that Gamez touched her and that it had happened twice in the last year. Harlow did not probe any further because he could tell their conversation was unpleasant for O.G. and he did not want to traumatize her. He told O.G. that the female counselor, Karen Gordon, would get in touch with her. Then, Harlow filed a child abuse complaint with Child Protective Services (CPS).
        On the same day, Deanna Dial, the CPS worker assigned to O.G.'s case, went to the school and visited with O.G. During their conversation, O.G. described the sexual assault and told Dial Gamez “put his thing inside her thing.” O.G. described her “thing” as her vagina and Gamez's “thing” as his penis. Also, when O.G. described being touched she pointed to her vagina. O.G. told Dial that she told her mother and sister what had happened. Dial asked O.G. to make a written statement describing what happened and she did. Dial took O.G. home. While speaking with O.G.'s parents at the door, G.G. came to the door and acknowledged that O.G. told her what happened. Dial explained to O.G.'s parents the allegations. O.G.'s mother began to hyperventilate and O.G.'s father looked at O.G. and said “look what you're doing.” After O.G.'s mother calmed down, Dial discussed with them the need for a safety plan, meaning Gamez could not be allowed back into the house. O.G.'s parents were hesitant about the safety plan. They did not agree to the safety plan until Dial told them she would have to take the children, including Gamez's two year old daughter, from the home if they did not agree. Dial contacted the Garland Police Department.
        At the beginning of March 2005, Detective Jeffrey Lee received a CPS report alleging the sexual abuse of O.G. by a family member. Detective Lee interviewed O.G. at school and took her statement. During the interview, O.G. told him Gamez penetrated her vagina with his penis and was able to provide sensory details about what occurred. Also, O.G. said she told her older sister. Detective Lee confirmed with O.G.'s older sister, G.G., that O.G. had talked with her about the abuse.
        At school, O.G. visited with Gordon, the school crisis counselor. During her visits, O.G. told Gordon that Gamez “did it to [her].” Gordon asked O.G. if she meant intercourse and O.G. shook her head yes. O.G. also told Gordon her family did not believe her, said it was all her fault, and did not want her to testify. After the summer of 2005, O.G. told Gordon she was pregnant and that Gamez was the father of her baby. Gordon did not think O.G. was pregnant and had the impression O.G. thought she was pregnant because she had intercourse. She called O.G.'s parents and they came to the school. Gordon wanted the parents to have O.G. take a pregnancy test and O.G.'s mother said “well what would this do, what will this mean for our son?” Later, Gordon learned that O.G. was not pregnant.
        In August 2005, O.G. began seeing Vanessa Sanford, a therapist at the Dallas Children's Advocacy Center. At the first session, Sanford spoke with O.G.'s parents, who were tearful because their son was in jail. During her sessions, O.G. told Sanford about her brother having sex with her and pointed to her vagina. A couple of months before Gamez's trial, O.G. gave Sanford a letter at the end of her session and asked Sanford to read it after she left. The letter stated:

I just wanted to say that I had lied. I'm not sure but I think it was a dream. The dream felt so real that I thought it was real but it wasn't. That's when I knew that it wasn't real. I got mad because they would make a lot of sound and I couldn't study. That is when I thought it was real. Then that is when I decided to tell because I was scared it really happened. I told my mom what happened and she told me that I should of [sic] told her what had happened earlyer [sic]. Then I was told by my mom that it was probably just a dream and so I lied. Please can you show this to Rachel [the prosecutor].

At O.G.'s next session, Sanford discussed the letter with her. O.G. told Sanford she was working on her homework when her mom said O.G. needs to help Gamez get out of jail because they need help financially. Also, O.G. told Sandford her mother helped her to write the letter. O.G. continually talked about the need to lie in court, but never denied the abuse occurred. O.G. told Sanford her job in court was to get Gamez out of jail by lying.
        After O.G. learned from M.H. that the district attorney's office had contacted M.H. and E.M., O.G. sent E.M. a note through a friend telling E.M. not to repeat what O.G. told her or O.G. would “change everything.” Also, O.G. told M.H. that she was going to lie in court because her mother was upset and told her to get her brother out of jail because of the bills.
        Gamez was indicted for the aggravated sexual assault of O.G., a child younger than fourteen years of age. During the trial, O.G. testified Gamez penetrated her anus, not her sexual organ, with his sexual organ. The jury found Gamez guilty and assessed his punishment at fifteen years of imprisonment.
II. ADMISSIBILITY OF WITNESS TESTIMONY

        In issues one through six, Gamez argues the trial court erred when it admitted the hearsay testimony of Harlow, E.M., M.H., Gordon, Sanford, and Detective Lee.   See Footnote 1
A. Preservation of Error

        In issues one, two, and six, Gamez argues the trial court erred when it admitted the hearsay testimony of Harlow, E.M., and Detective Lee. The State responds that Gamez waived any error with respect to the testimony of Harlow, E.M., and Detective Lee because he failed to object to their testimony. Also, the State contends that even if Gamez had preserved his complaints for appeal, their testimony was admissible because Gamez elicited the same testimony from Harlow during cross-examination, E.M.'s testimony was admissible extrinsic evidence of a prior inconsistent statement by O.G., and Detective Lee's testimony explained the basis for his investigation.
        To preserve an issue for appellate review, a party is required to show: (1) a timely and specific request, objection, or motion bringing the issue to the trial court's attention; and (2) the trial court ruled on the party's request, objection, or motion, or the trial court refused to rule and the party objected to that refusal. Tex. R. App. P. 33.1(a).
        Gamez complains of the following testimony by Harlow relating to what O.G. told him:

STATE:

And, what happened next?

HARLOW:

I-when she didn't respond to my questions about having a problem I informed her that her friends had indicated that she was having problems at home particularly with one of her brothers, and I said is that true and she began to nod her head. And, I said is your brother touching you inappropriately and she began to nod her head. And, I said is he touching you in ways that he shouldn't be touching you and she continued to nod her head. And, it was at that period, it was at that time that I knew that I had to take some kind of action.

* * * * * * *

STATE:

And, did she indicate which brother she was having this inappropriate touching with?

HARLOW:

Yes, she did. And, when I filed the report I mentioned that. It was-I indicated that and this was on February 28, 2005 touched by older brother, Santiago.

        With respect to E.M., Gamez complains of the following testimony by E.M. relating to what O.G. told her:

STATE:

So, you were in the bus sitting with her.

E.M.:

Yeah. And, then we asked her, because she was like crying, and, she was like sad, and, then we got to-she wouldn't tell us anything and then when we got to school we found her crying in the restroom and she just told us that her brother had done something to her. And then, like we, we were like, mad and like sad, like at the same time. So, I was just like, well calm down, don't cry no more, and then, well, me and Maria decided to go to the counselor about it and then that's why we're like we told our counselor and he was just like, he told us that we were good friends for helping her and everything. And, then he said just to, like go back to class. But, she told it was on Sunday that it happened.

* * * * * * *

STATE:

And, did she tell you what her brother did to her?

E.M.:

That she was by herself in her house and he got to the house and he just, that he raped her.

        With respect to Detective Lee, Gamez complains of the following testimony relating to what O.G. told him:

STATE:

And, where, in what context did she talk about movement?

DET. LEE:

She said-

DEFENSE:

Objection, Your Honor, calls for hearsay.

COURT:

Overruled.

STATE:

Go ahead.

DET. LEE:

She said that when he laid on top of her he was moving up and down.

STATE:

And, did she talk about how she felt while he was doing that?

DET. LEE:

Yes, she did.

STATE:

And, what did she say?

DET. LEE:

She explained that she told him to stop, he did not. She was emotional about what was going on and at one point she said that it hurt.

        Gamez did not make a timely and specific objection at the time the complained of testimony was offered. We conclude Gamez has not preserved his first, second, and sixth issues for appeal.
B. Harmful Error

        In issues three, four, and five, Gamez argues the trial court erred when it admitted the hearsay testimony of M.H., Gordon, and Sanford. He claims their statements were not offered under the outcry statute and constituted impermissible hearsay. The State responds that M.H.'s, Gordon's, and Sanford's testimony were admissible extrinsic evidence of a prior inconsistent statement by O.G. Also, the State contends that Gordon's testimony was admissible under rule 803(4) because O.G.'s statements were made for the purpose of medical diagnosis or treatment. Further, the State argues that even if the trial court erred when it admitted the testimony of M.H., Gordon, and Sanford, Gamez was not harmed by their testimony because O.G.'s testimony was sufficient to support Gamez's conviction and other properly admitted evidence proved the same facts. We will assume, without deciding, the trial court erred and review the testimony of M.H., Gordon, and Sanford for harm.
1. Applicable Law


        Texas Rule of Appellate Procedure 44.2(b) provides that an appellate court must disregard a non-constitutional error that does not affect a criminal defendant's substantial rights. Tex. R. App. P. 44.2(b). After examining the record as a whole, an appellate court may not reverse for non-constitutional error under rule 44.2(b), if the court has a fair assurance the error did not have a substantial and injurious effect or influence on the jury when determining the verdict. See Garcia v. State, , 927 (Tex. Crim. App. 2004); Bourque v. State, 156 S.W.3d 675, 677 (Tex. App.-Dallas 2005, pet. ref'd). Any error in admitting evidence is rendered harmless when other properly admitted evidence proves the same fact. See Bourque, 156 S.W.3d at 677 (citing Brooks v. State, , 287 (Tex. Crim. App. 1999)).
2. Application of the Law to the Facts

        With respect to M.H., Gamez complains of the following testimony:

DEFENSE:

Your Honor, we'll renew our objection to this kind of questioning, trial objection two and three.

COURT:

The Court recalls your objections. Your objections are overruled.

* * * * * * *

STATE:

And, why was [O.G.] crying?

M.H.:

Because, she said her brother had raped her.

* * * * * * *

STATE:

And, by raped her, what did she mean?

M.H.:

That like, she was pregnant and that he had raped her, like hard, like, she tried to stop, but she couldn't stop him.

STATE:

She couldn't stop him?

M.H.:

Huh huh.

        With respect to Gordon, Gamez complains of the following testimony:

DEFENSE:

Your Honor, at this time we renew our trial objection two and three.

COURT:

The Court recalls your trial objections. Your objections are overruled.

* * * * * * *

STATE:

And, what were the specific details that she went into with you?

GORDON:

She said that she was at home and her brother had called her into his room or they went into a bedroom some how they were both in the bedroom and that he had attacked her just, you know, pushed her down and, you know, wedged her knees apart and attacked her.

        With respect to Sanford, Gamez complains of the following testimony:

STATE:

And what did [O.G.] tell you what had happened?

DEFENSE:

Objection, Your Honor, trial objections two and three.

COURT:

The Court recalls those objections. Your objections are overruled.

STATE:

Please continue, Ms. Sanford?

SANFORD:

[O.G.] was discussed [sic] about when her brother came into her room and asked her to have sex and she said no, and then he made her go into his room and he told her-made her take off her clothes and then she described laying on the floor and him on top of her and him moving around and then she said he got up and she got out of the room and got dressed and went into her sister's room.

        The statement O.G. wrote when Dial, the CPS worker, met with her at school was admitted into evidence over Gamez's objection. Gamez does not argue on appeal the trial court erred when it admitted O.G.'s statement into evidence. O.G.'s statement states:

I got punished and went to my room when my brother Santiago [Gamez] came in and asked me if I wanted to do it[.] I said no and he said okay[.] [H]e got me by the hands and made me fall. Then he took off his clothes and I got scared and tried to scream but he told me not to and started to do it with me[.] I cried when he did it to me[.] I told him that he was soon gonna get in trouble but he didn't stop and he had undressed me completely so that he could do the sex better but I had gotten scared and got dressed and got out of my room and told my mom about what we had done and she told him to stop. He got mad and went to his room and started to hit the wall very hard. When I said he did it I meant he stuck his thing into mine and that's what got me scared. It only lasted a few minutes, it hurt and I tried to hit him but he had stopped me. Then we never talked to each other even today 2/28/05. Also I just wished if I told anyone that they would not put him in jail. I had never thought that he would do that so now I stay with my sister together like friends. s/[O.G.]

O.G.'s statement was substantially similar to M.H.'s, Gordon's, and Sanford's testimony. Because the improper admission of evidence is rendered harmless when other properly admitted evidence proves the same facts, we conclude Gamez was not harmed by the complained of testimony of M.H., Gordon, and Sanford.
        Gamez's third, fourth, and fifth issues are decided against him.
IV. MISTRIAL

        In issue seven, Gamez argues the trial court erred when it denied his motion for mistrial. He claims Detective Lee improperly testified about a prior allegation of sexual abuse against Gamez and the trial court's instruction to disregard could not cure the prejudicial effect. The State responds that the trial court's instruction to disregard related to a request to withdraw the question and the trial court ruled the complained of testimony was admissible.
A. Standard of Review

        The decision to deny a motion for mistrial is within the discretion of the trial court. Edwards v. State, 106 S.W.3d 833, 838 (Tex. App.-Dallas 2003, pet. ref'd) (citing Rousseau v. State, , 684 (Tex. Crim. App. 1993)). An appellate court reviews a trial court's decision to deny a mistrial under an abuse of discretion standard. Ladd v. State, , 567 (Tex. Crim. App. 1999) (citing State v. Gonzalez, , 696 (Tex. Crim. App. 1993)).
B. Applicable Law

        A mistrial is an extreme remedy for prejudicial events occurring during the trial process. See Edwards, 106 S.W.3d at 838. However, a prompt instruction to disregard will ordinarily cure the prejudicial effect. See Ladd, 3 S.W.3d at 567. The jury is presumed to follow the trial court's instruction to disregard improperly admitted evidence in the absence of evidence indicating the members of the jury failed to do so. See id.; State v. Boyd, 202 S.W.3d 393, 402 (Tex. App.-Dallas 2006, pet. ref'd).
C. Application of the Law to the Facts

        During Gamez's cross-examination of Detective Lee, the following occurred:

DEFENSE:

Okay. Did you go to his parents to try to see if you could find out where he was from them?

DET. LEE:

No.

DEFENSE:

Was there a particular reason you didn't do that?

DET. LEE:

Yes, because there was an allegation that was prior to that; that was the parents not being protective.

DEFENSE:

Objection, Your Honor.

        The jury was excused and the trial court held a hearing on the objection. Defense counsel argued Detective Lee's answer was nonresponsive and prejudicial, and she was not expecting Detective Lee's answer. The trial court ruled that based on defense counsel's cross-examination and question, Detective Lee's answer was admissible. During the hearing, defense counsel also raised the issue of a pending motion in limine regarding impeachment of O.G. However, defense counsel indicated she would prefer a trial objection and the trial court stated she could refer to it as “trial objection number three.” Then, defense counsel moved for a mistrial and the trial court denied the motion.
        After the jury returned to the courtroom, the following occurred:

DEFENSE:

We withdraw the last question, Judge.

COURT:

All right. The last question is withdrawn and members of the jury you're instructed to disregard the last question by [defense counsel] and the answer by [Detective Lee].

        Defense counsel asked Detective Lee why he did not speak with the parents and he gave his reason why. Detective Lee's answer did not actually assert the prior allegation for which the parents were not protective was an allegation of sexual assault or that the prior allegation involved Gamez. Although the trial court denied Gamez's motion for mistrial, the trial court allowed defense counsel to withdraw the question and instructed the jury to disregard defense counsel's question and Detective Lee's answer. Assuming, without deciding Detective Lee's answer was inadmissible, any error was cured by the trial court's instruction to disregard. See Ladd, 3 S.W.3d at 567; Boyd, 202 S.W.3d at 402. We conclude the trial court did not err when it denied Gamez's motion for mistrial.
        Gamez's seventh issue is decided against him.
V. LEGAL AND FACTUAL SUFFICIENCY

        In issues eight and nine, Gamez argues the evidence is legally and factually insufficient to support his conviction for aggravated sexual assault of a child under fourteen years of age. He argues the indictment alleged he vaginally penetrated O.G., but O.G. testified he penetrated her anus. The State responds that, although O.G. changed her testimony at trial and stated Gamez sexually assaulted her anally, not vaginally, there was sufficient evidence from O.G. and other witnesses that Gamez vaginally penetrated O.G.

A. Standards of Review

        Differences exist between a legal sufficiency and factual sufficiency review of the evidence. Johnson v. State, , 7 (Tex. Crim. App. 2000); Lee v. State, 186 S.W.3d 649, 654 (Tex. App.-Dallas 2006, pet. ref'd). However, a factual sufficiency review is barely distinguishable from a legal sufficiency review. Marshall v. State, , 625 (Tex. Crim. App. 2006). The primary difference between the two standards is that a legal sufficiency review requires an appellate court to defer to the jury's credibility and weight determinations while a factual sufficiency review permits the appellate court to substitute its judgment for the jury on these questions, albeit to a very limited degree. See id.

1. Legal Sufficiency

        The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Lane v. State, , 191-92 (Tex. Crim. App. 2004); Young v. State, , 753 (Tex. Crim. App. 2000); Lee, 186 S.W.3d at 654. A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. See Marshall, 210 S.W.3d at 625; King v. State, , 562 (Tex. Crim. App. 2000); Lee, 186 S.W.3d at 654. The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, , 647 (Tex. Crim. App. 1996); Lee, 186 S.W.3d at 654. In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, , 917 (Tex. Crim. App. 2000); Lee, 186 S.W.3d at 654. Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, , 41-42 (1988); Marshall, 210 S.W.3d at 625; Johnson v. State, , 411 (Tex. Crim. App. 1998); Lee, 186 S.W.3d at 654.

2. Factual Sufficiency

        In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Roberts v. State, , 524 (Tex. Crim. App. 2007); Watson v. State, , 415 (Tex. Crim. App. 2006). Evidence that is legally sufficient to support a verdict of guilt may still be factually insufficient when the verdict seems clearly wrong or manifestly unjust, or it is against the great weight and preponderance of the evidence. Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 417.
        When conducting a factual sufficiency review, an appellate court considers all of the evidence, both direct and circumstantial. See Marshall, 210 S.W.3d at 625; see also King, 29 S.W.3d at 565; Kutzner v. State, , 184 (Tex. Crim. App. 1999); Lee, 186 S.W.3d at 655; Smith v. State, 895 S.W.2d 449, 452 (Tex. App.-Dallas 1995, pet. ref'd). Also, an appellate court gives due deference to the findings of the fact-finder, but the appellate court may substitute its judgment for the jury's credibility and weight determinations to a very limited degree. See Roberts, 220 S.W.3d at 524; Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 416-17; see also Johnson, 23 S.W.3d at 9 (factual sufficiency review requires reviewing court to afford “due deference” to jury's determinations); Clewis v. State, , 135 (Tex. Crim. App. 1996) (factual sufficiency review requires “deferential standards of review applied” to jury verdicts). However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, , 287 (Tex. Crim. App. 2001); Lee, 186 S.W.3d at 655. An appellate court cannot declare a conflict in the evidence justifies a new trial simply because it disagrees with the jury's resolution of that conflict. See Watson, 204 S.W.3d at 417. Reversal for factual insufficiency occurs only when: (1) the evidence supporting the verdict is so weak the verdict seems clearly wrong and manifestly unjust; or (2) there is some objective basis in the record that shows the great weight and preponderance of the evidence contradict the jury's verdict. See Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417; see also Vasquez v. State, , 236 (Tex. Crim. App. 2002); Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129.
B. Applicable Law

        A person commits the offense of aggravated sexual assault if he intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means and the child was younger than fourteen years of age. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), (2)(B); Lee, 186 S.W.3d at 655. Contradictory testimony from a witness does not render the evidence insufficient. See Lee v. State, 176 S.W.3d 452, 458 (Tex. App.-Houston [1st Dist.] 2004) (contradictory testimony of complaining child witness does not make evidence insufficient), aff'd on other grounds (Tex. Crim. App. 2006); Davila v. State, 147 S.W.3d 572, 575 (Tex. App.-Corpus Christi 2004, pet. ref'd) (State's witness impeached with prior statements and contradicted); Hemphill v. State, 826 S.W.2d 730, 733 (Tex. App.-Houston [14th Dist.] 1992, pet. ref'd, untimely filed) (in aggravated sexual assault case, inconsistencies in child victim's testimony did not make evidence insufficient); Weisinger v. State, 775 S.W.2d 424, 429 (Tex. App.-Houston [14th Dist.] 1989, pet. ref'd) (in aggravated sexual assault of child case, contradiction in boys' testimony did not destroy sufficiency of evidence).
C. Application of the Law to the Facts

        The indictment against Gamez alleged he:

[I]ntentionally and knowingly cause[d] the contact and penetration of the female sexual organ of [O.G.], a child, who was not then the spouse of [Gamez], by an object, to wit: the sexual organ of [Gamez], and, at the time of the offense, the child was younger than 14 years of age.

        Viewing the evidence in the light most favorable to the verdict, there was evidence that Gamez intentionally or knowingly caused the contact and penetration of O.G.'s female sexual organ with his sexual organ. The record reflects that, during the trial, O.G. stated Gamez “put his thing in [her] behind,” she was on her stomach when he put his thing in her behind, he put his thing “where [she] go[es] number two,” and she lied when she told other people Gamez “put his thing in her thing.” However, O.G. also stated that, after she told about the abuse, her family was mad at her and her sisters started being mean to her, her mother cried a lot and was sad, it has been hard for her family without Gamez there, and she felt it was her fault he is not there. O.G. stated she loved Gamez, she was afraid that if she told the truth Gamez would go back to jail, she thought that if she said something different, i.e., Gamez penetrated her anus, he would not get in trouble, she felt she had to change her story regarding what happened because her family was mad at her, and she was scared to say in court Gamez “put his thing in her thing.” O.G. stated her mother helped her to write the letter to Sanford stating the whole thing had been a dream. Further, O.G. stated she was at court because something bad happened to her, Gamez abused her, it really happened more than once, she told Gordon, Dial, Sanford, and Detective Lee that Gamez “put his thing in her thing,” and she knew she could not become pregnant through anal intercourse. The statement O.G. wrote when Dial, the CPS worker, met with her at school was admitted into evidence and states, “he stuck his thing into mine.”
        Dial testified O.G. told her Gamez “placed his thing inside [her] thing and that he did it to [her].” Detective Lee testified O.G. suggested to him that Gamez penetrated her “front private part” with his penis. Gordon testified O.G. told her Gamez had intercourse with her and she believed she was pregnant by her brother. Also, E.M. and M.H. stated O.G. told them Gamez raped her, she feared she was pregnant because of what Gamez did to her, and her parents were pressuring her to lie about what happened. In addition, during the trial, O.G.'s mother, referred to O.G. as “the girl.”
        Viewing the evidence in a neutral light, we conclude there is evidence from which a fact finder could rationally conclude beyond a reasonable doubt that Gamez intentionally or knowingly caused the contact and penetration of O.G.'s female sexual organ with his sexual organ. The great weight and preponderance of the evidence do not contradict the jury's verdict.
        After reviewing all of the evidence under the appropriate standards of review, we conclude the evidence is legally and factually sufficient to support Gamez's conviction for aggravated sexual assault of a child under fourteen years of age.
        Gamez's eighth and ninth issues are decided against him.
VI. CONCLUSION

        Gamez failed to preserve for appeal any error with respect to the testimony of Harlow, E.M., and Detective Lee. Even if the admission of the testimony of M.H., Gordon, and Sanford was error, Gamez failed to show he was harmed by any error. The trial court did not err when it denied Gamez's motion for mistrial. Finally, the evidence is legally and factually sufficient to support Gamez's conviction.
        The trial court's judgment is affirmed.


                                                          DOUGLAS S. LANG
                                                          JUSTICE

Do Not Publish
Tex. R. App. P. 47
060469f.u05

Footnote 1 We note that Gamez argues the testimony of Detective “Jerry” Lee was inadmissible. There is nothing in the record that shows a Detective Jerry Lee testified. However, the record does contain the testimony of Detective “Jeffrey” Lee. We presume Gamez is arguing about Detective Jeffrey Lee's testimony.

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