Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 389th District Court of Hidalgo County,
Justices Rodriguez, Contreras, and Longoria.
V. RODRIGUEZ Justice.
found appellant Erasmo Mata Jr. guilty of one count of sexual
assault of a child, a second-degree felony, and assessed
punishment at four years' imprisonment and a $5, 000
fine. See Tex. Penal Code Ann. §
22.011(a)(2)(C), (f) (West, Westlaw through 2015 R.S.);
id. § 22.011(c)(1) (defining "child"
as "a person younger than 17 years of age"). The
trial court rendered a judgment of conviction and sentence in
accordance with the jury's verdict. By four issues, which
we have reorganized, Mata first contends that the evidence is
insufficient to support a finding of guilt. He also asserts
that the trial court erred when it denied the admission of
text messages purportedly exchanged between complainant
and others; denied Mata's motion for new trial that
alleged juror misconduct during deliberations; and refused to
allow the completion of Mata's offer of proof. We affirm.
Sufficiency of the Evidence and Verdicts
first issue, Mata contends the evidence is insufficient to
support his conviction. See id. § 22.011(2)(C).
Mata also complains that the jury's verdicts of guilty of
sexual assault by contact and not guilty of sexual assault by
penetration are conflicting and "cannot be logically
sustained." In response, the State argues that
"[t]he verdicts are readily explained: while the jury
did not find beyond a reasonable doubt that penetration was
achieved while [N.G.] was a child, the jury did determine
that the evidence was adequate to establish that sexual organ
to sexual organ contact had occurred" between N.G. and
Mata while N.G. was a child. See id.
Standard of Review and Applicable Law
reviewing the sufficiency of the evidence, a court will
examine the evidence in the light most favorable to the
verdict. Jackson v. Virginia, 443 U.S. 307, 319
(1979); see Brooks v. State, 323 S.W.3d 893, 902
(Tex. Crim. App. 2011). The critical inquiry is whether the
evidence would support a rational fact-finder determining
that the defendant is guilty beyond a reasonable doubt.
Jackson, 443 U.S. at 319. This standard accounts for
the factfinder's duty to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Id.;
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007). We must not re-evaluate the weight and
credibility of the evidence and substitute our judgment for
that of the factfinder. See Dewberry v. State, 4
S.W.3d 735, 740 (Tex. Crim. App. 1999) (en banc). We must
presume that the factfinder resolved any conflicting
inferences in favor of the prosecution and defer to that
resolution. Jackson, 443 U.S. at 326;
Clayton, 235 S.W.3d at 778.
reviewing court measures the sufficiency of the evidence by
the elements of the offense as defined by a hypothetically
correct jury charge. Villarreal v. State, 286 S.W.3d
321, 327 (Tex. Crim. App. 2009). A hypothetically correct
jury charge is authorized by the indictment, accurately sets
out the law, does not unnecessarily increase the State's
burden of proof or restrict the State's theories of
liability, and adequately describes the particular offense in
question. Malik v. State, 953 S.W.2d 234, 239 (Tex.
Crim. App. 1997) (en banc). In this case, to support a
conviction for sexual assault by contact, the evidence must
show that on or about July 15, 2013, Mata knowingly or
intentionally caused the sexual organ of N.G., a child who
was younger than seventeen years of age, to contact his
sexual organ. See Tex. Penal Code Ann. §
22.011(a)(2)(C). On appeal, Mata specifically challenges the
sufficiency of the evidence to establish the contact element
of the offense. See id.
to trial testimony, Mata met N.G. in May of 2013. At that
time, Mata was a police officer with the Pharr Police
Department. He was patrolling the area near N.G.'s
apartment complex, and N.G. was outside her home. Mata
stopped his vehicle and asked N.G. for her name and telephone
number. They subsequently communicated by phone and Yahoo
messenger and saw each other on occasion.
trial, N.G. testified that in June or July 2013, when she was
sixteen years old, she and Mata were alone at night in an
empty apartment. Mata had removed N.G.'s clothes and his
pants, with his underwear down to his knees, and was on top
of her. According to N.G., although Mata told her that he
wanted to have sex with her, she did not because "it was
[her] first time." In response to her saying "no,
" Mata told her that nothing would happen, although, as
N.G. recounted, Mata tried to "put his penis inside
[her] vagina" "more than four times." N.G.
testified that she felt "the front of his penis, "
"[t]he front of the-the head, " "just a little
bit." According to N.G., she told Mata to stop and
agreed that she felt pain.
also testified about a second incident that occurred when she
was sixteen. N.G. explained that she and Mata were in a lot
behind her apartment, and Mata "was trying again to put
his penis inside [her] vagina." She agreed, however,
that nothing happened.
N.G. testified that the first time she had sex with Mata was
when she "lost [her] virginity with him" in the
back of a truck on October 20, 2013, after her seventeenth
birthday. In the following testimony, N.G. compared the
October 20 incident with the incident that occurred at the
empty apartment when she was sixteen years old:
Q. Can you-why is that time on October 20th different from
what happened in the apartment?
A. Then he tried to put it inside and then I kept telling him
it hurt, it hurt a lot. And then he would just put it all the
Q. Okay. He put it all the way in?
Q. What did he do with his body?
A. He was going back and forth.
Q. Okay. Now, I want you to think back to what happened in
the apartment. How is what happened in the apartment
A. [After removing their clothes, ] then he tried to put his
penis again in my vagina.
Q. And can you tell the jury-when you say, he tried to put
his penis in, what do you mean?
A. Like, the front of the penis and I told him to stop
because it was hurting.
following exchange occurred when counsel asked N.G. to
visually illustrate with her hand and finger what happened at
the apartment and what happened in the truck.
Q. . . . [C]an you show the jury by holding your hands up to
them, where the defendant put his penis?
A. Like right here.
Q. Okay. How is that different from what happened in the
THE COURT: Could the record reflect that she has actually
made a circle with her left hand and her finger, index finger
on the right hand and put it-describe ...