RUBIN JASON CAMARILLO, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed March 23, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00503-CR
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RUBIN JASON CAMARILLO, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F04-15045-JL
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MEMORANDUM OPINION
Before Justices Whittington, Moseley, and O'Neill
Opinion By Justice Moseley
        A jury convicted Rubin Jason Camarillo of aggravated sexual assault of a child under the age of fourteen. After finding two enhancement paragraphs to be true, the trial court imposed punishment at life confinement. Camarillo appeals, asserting in four issues that the evidence is factually insufficient to support the conviction, and the trial court erred in (1) improperly instructing the jury on voluntary intoxication; (2) improperly defining reasonable doubt; and (3) failing to limit the conduct elements in the jury charge. The background of the case and the evidence adduced at trial are well known to the parties; thus we do not recite them here in detail. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. For the reasons set forth below, we affirm the trial court's judgment.         Camarillo was indicted for unlawfully, intentionally, and knowingly causing the contact and penetration of the anus of M.C., a child younger than fourteen years of age, who was not Camarillo's spouse, by Camarillo's sexual organ. The offense allegedly took place on or about July 1, 2003. M.C. was born in 1993, and Camarillo was her stepfather. In December 2003, M.C. made an outcry to her older cousin. At trial, M.C. testified that Camarillo put his “private part” in her “butt.” M.C. testified the abuse started when she was six years old, and, in therapy documents, she said Camarillo abused her twice a week for four years.
        In Camarillo's first issue he argues the evidence is factually insufficient to support his conviction.
        The court of criminal appeals has held that we have statutory and constitutional authority to reverse a conviction and remand the case for new trial in the event the evidence is factually insufficient to support the conviction. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). Evidence that is legally sufficient can still be factually insufficient when the verdict seems clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (citing Watson, 204 S.W.3d at 414-15).
        When reviewing a criminal conviction for factual sufficiency, we answer only one question: “Considering all of the evidence in a neutral light, was the fact finder rationally justified in finding guilt beyond a reasonable doubt?” Watson, 204 S.W.3d at 415. We set aside the verdict only if the evidence is so weak that it is clearly wrong and manifestly unjust or the contrary evidence is so strong that the “beyond a reasonable doubt” standard of proof could not have been met. Garza v. State, 213 S.W.3d 338, 344 (Tex. Crim. App. 2007) (citing Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997)). In turn, a verdict is clearly wrong and unjust if jury's finding is “manifestly unjust,” “shocks the conscience,” or “clearly demonstrates bias.” Id. (citing Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997)).
        We measure the factual sufficiency of the evidence against a hypothetically correct jury charge authorized by the indictment. See Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002). (state law measures evidentiary sufficiency against an “authorized by the indictment . . . hypothetically correct jury charge” which “encompasses [the] statutory elements of the offense as modified by the charging instrument”); Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001); Malik v. State, 953 S.W.2d 234, 236-40 (Tex. Crim. App. 1997).
        A person commits aggravated sexual assault of a child if he intentionally and knowingly causes his sexual organ to penetrate the anus or sexual organ of a child under the age of fourteen. Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), (a)(1)(B)(ii), (a)(2)(B) (Vernon 2003). The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault; so is evidence of a child's outcry statement. Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd). We also take into account that children may use “unsophisticated language” when describing sexual acts. Wallace v. State, 52 S.W.3d 231, 235 (Tex. App.-El Paso 2001, no pet.).
        Appellant contends the evidence is factually insufficient to support his conviction because there is evidence that M.C.'s maternal grandfather was a registered sex offender and that the grandfather's son, M.C.'s uncle, had been accused of the aggravated sexual assault of his stepdaughter. Camarillo argues that these men lived at M.C.'s residence or had access to her. Camarillo urges that other men may have been the perpetrators, M.C.'s mother did not notice a change in M.C.'s behavior indicating assault, and there was no physical evidence of a sexual assault.         However, M.C.'s testimony identified only Camarillo as her abuser and detailed the incidences of abuse. See Tear, 74 S.W.3d at 560; Wallace, 52 S.W.3d at 235. M.C.'s therapist also testified that, during fifty-six therapy sessions, M.C. never stated that anyone other than Camarillo had assaulted her, nor did she ever state that she was sexually abused by her grandfather or uncle.
        Considering all the evidence in a neutral light, we conclude the fact finder was rationally justified in finding guilt beyond a reasonable doubt. See Watson, 204 S.W.3d at 415. We need not further detail the rest of the evidence. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We decide appellant's factual sufficiency issue against him. We resolve Camarillo's first issue against him.
        In Camarillo's second issue he contends the trial court erred in including a voluntary intoxication instruction in the jury charge because there was no evidence of intoxication. Appellate review of alleged error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we determine whether error occurred. If so, we then evaluate whether sufficient harm resulted from the error to require reversal. Id. at 731-32. When, as here, any charge error is not preserved, we apply the “egregious harm” standard, reversing only if we determine from the record of the trial as a whole that appellant “has not had a fair and impartial trial.” See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
        A trial court must charge the jury fully and affirmatively on the law applicable to every issue raised by the evidence. Taylor v. State, 885 S.W.2d 154, 157 (Tex. Crim. App. 1994). If there is evidence from any source that might lead a jury to conclude that the defendant's intoxication somehow excused his actions, an instruction under Texas Penal Code section 8.04(a) is appropriate. Tex. Pen. Code Ann. § 8.04(a) (Vernon 2003) (“Voluntary intoxication does not constitute a defense to the commission of crime.”); see Taylor, 885 S.W.2d at 158.
        M.C.'s cousin, Christina Pogue, testified at trial that she, M.C.'s mother, and Camarillo smoked methamphetamine at both houses where the family lived during the time M.C. was sexually assaulted. Pogue agreed that smoking methamphetamine makes a person “kind of moody” and “hyper.” Because there was evidence Camarillo used drugs during the time he was sexually assaulting M.C., the jury might have been led to conclude that his intoxication somehow excused his actions. Therefore, the trial court did not err in giving an instruction under Texas Penal Code section 8.04(a) on voluntary intoxication. We resolve Camarillo's second issue against him.
        In Camarillo's third issue, he complains the trial court erred by instructing the jury “[i]t is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof exclude all reasonable doubt concerning the defendant's guilt.” Camarillo argues this instruction provides a definition of reasonable doubt and therefore violates the Texas Court of Criminal Appeals's holding in Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). We have previously decided this precise issue to the contrary. See O'Canas v. State, 140 S.W.3d 695, 702 (Tex. App.-Dallas 2003, pet. ref'd); see also Bates v. State, 164 S.W.3d 928, 931 (Tex. App.-Dallas 2005, no pet.); Ochoa v. State, 119 S.W.3d 825, 829 (Tex. App.-San Antonio 2003, no pet.) (holding disputed language does not constitute definition of reasonable doubt). We resolve Camarillo's third issue against him.
        In Camarillo's fourth issue he argues the trial court erred by failing to limit the conduct elements in the jury charge. In particular, he argues that aggravated sexual assault of a child is a nature of conduct offense, and the trial court should have limited the definitions of intentionally and knowingly accordingly. Camarillo did not object to the charge at trial.
        Three “conduct elements” can be involved in an offense: (1) nature of the conduct, (2) result of the conduct, and (3) circumstances surrounding the conduct. McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). A particular offense may contain one or more of these conduct elements. Id. When an offense is either a result oriented or nature of the conduct offense, the court should limit the statutory definitions of knowingly and intentionally to the culpable mental state required. Murray v. State, 804 S.W.2d 279, 281 (Tex. App.-Fort Worth 1991, pet. ref'd); Saldivar v. State, 783 S.W.2d 265, 267-68 (Tex. App.-Corpus Christi 1989, no pet.).
        However, when an offense, such as aggravated sexual assault, is not clearly a result oriented or a nature of the conduct type offense, it is not error for the trial court to submit both in its definitions of knowingly and intentionally. Saldivar, 783 S.W.2d at 267 (citing Bosier v. State, 771 S.W.2d 221, 225 (Tex. App.-Houston [1st Dist.] 1989, pet. ref'd)). Submitting the full definitions of knowingly and intentionally allows the jury to consider both the nature of an assailant's conduct as well as the result of his conduct. Id. We conclude that until the Texas Court of Criminal Appeals classifies aggravated sexual assault as either a result oriented crime or nature of the conduct offense, it is not error for the trial court to submit the complete definition of intentionally and knowingly.
        Even if we assumed the charge was erroneous, we conclude Camarillo was not egregiously harmed. See Almanza, 686 S.W.2d at 171. To show egregious harm, Camarillo's brief states only that the jury was confused “by the inclusion of improper conduct elements.” Camarillo does not present any explanation, argument, or analysis suggesting how the jury could have been confused or misled by the charge given. Based on the charge and after reviewing the record, we fail to see how the jury could have been confused. Under the application paragraph, the jury was charged that, if it found, beyond a reasonable doubt, that Camarillo did “intentionally or knowingly cause the contact or penetration of the anus of [M.C.], a child, who was not then the spouse of [Camarillo], by an object, to-wit: the sexual organ of [Camarillo] and, at the time of the offense, the child was younger than 14 years of age, then you will find [him] guilty of the offense of aggravated assault of a child younger than 14 years of age, as charged in the indictment.” This required the jury to find Camarillo engaged in the conduct with the requisite intent. We resolve Camarillo's fourth issue against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060503f.p05