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Martinez v. State

Court of Appeals of Texas, Fourth District, San Antonio

April 12, 2017

Jaime Ruben MARTINEZ, Appellant
v.
The STATE of Texas, Appellee

         From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2014CR6035 Honorable Ray Olivarri, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice, Marialyn Barnard, Justice, Patricia O. Alvarez, Justice.

          OPINION

          Sandee Bryan Marion, Chief Justice.

         This is an appeal by Jaime Ruben Martinez, appellant, from his conviction for aggravated sexual assault of a child, habitual. We conclude the evidence is sufficient to support appellant's conviction under count two of the indictment. Therefore, we affirm the trial court's judgment on count two. Although we conclude the evidence is legally insufficient to support the trial court's verdict on count one of the indictment, we hold the test set forth in Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014), is satisfied as to count three of the indictment. Therefore, we reverse the trial court's judgment on count one, modify the judgment to reflect a conviction for indecency with a child by sexual contact under count three, affirm the conviction under count three as modified, reverse the punishment under count one, and remand this case to the trial court to conduct a new punishment hearing on count three. We affirm the trial court's judgments in all other respects.

         BACKGROUND

         A grand jury indicted appellant on four counts: (1) aggravated sexual assault by penetration of the child's sexual organ; (2) aggravated sexual assault by penetration of the child's anus; (3) sexual contact by touching part of the child's genitals; and (4) sexual contact by touching the child's anus.

         Appellant waived his right to a jury, and trial before the bench commenced. Before hearing substantive testimony, the trial court conducted an outcry hearing to determine whether the child-complainant's mother was the first person the child told about what happened. The child, K.A., [1]testified her mother, Stephanie, was the first person she told. Stephanie then testified that, during dinner one evening, K.A. told her appellant "touched [K.A.] in her private area." When asked what she understood "private area" to mean, Stephanie said vagina. Stephanie stated K.A. told her appellant put his finger in K.A.'s vagina. The trial court qualified Stephanie as the outcry witness.

         During substantive testimony, Stephanie testified K.A. would often stay at her parents' home while Stephanie worked. Stephanie's niece and K.A.'s cousin, T.M., also stayed at their grandparents' house. In addition to the two girls, one of Stephanie's sisters, Stephanie's father, and appellant also were in the house when the girls were present. At the time, appellant was dating another of Stephanie's sisters.

         Stephanie testified that K.A.'s outcry occurred during a July 25, 2013, family dinner when K.A. became upset over the use of the word "abuse" during a discussion about a child-safety video K.A.'s brother had watched at school. Stephanie told the other children to leave the table, at which point K.A. told her mother that appellant had "touched" her "butterfly" with his finger. Stephanie said, in the family, "butterfly" meant vagina. When asked for further details about how appellant touched K.A., Stephanie replied

A. Just, he was using his finger touching her butterfly or -
Q. Okay. Was it on the outside of her vagina or did he actually penetrate her vagina?
A. I know it was on the outside. I - I don't - I - the penetration part.
Q. Okay. When [K.A.] was talking about the time that [appellant] touched her, did she indicate how many ...

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