Court of Appeals of Texas, Fourth District, San Antonio
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.
Bryan Marion, Chief Justice.
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
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
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., 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.
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
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
Q. Okay. When [K.A.] was talking about the time that
[appellant] touched her, did she indicate how many ...