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In re E.G.C.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

July 13, 2017

IN THE MATTER OF E.G.C., A JUVENILE

          On appeal from the 98thDistrict Court of Travis County, Texas.

          Before Chief Justice Valdez and Justices Longoria and Hinojosa

          MEMORANDUM OPINION [1]

          LETICIA HINOJOSA Justice

         Appellant E.G.-C, a juvenile, appeals a judgment wherein a trial court adjudicated him a delinquent for committing sexual assault. See Tex. Fam. Code Ann. §§ 51.03, 53.045(a) (West, Westlaw through Ch. 49 2017 R.S.); Tex. Penal Code Ann. § 22.011 (West, Westlaw through Ch. 49 2017 R.S.). The trial court placed appellant on a determinate sentence of probation for five years. In two issues, appellant contends that: (1) the evidence was legally insufficient to support a finding that he compelled D.M., [2] the complainant, to submit by the use of physical force, threats, duress or violence; and (2) the order imposing a determinate sentence of probation erroneously provides that appellant signed a waiver of grand jury approval. We affirm as modified.

         I. Background

         In a petition, the State alleged that appellant, at the age of sixteen years old, engaged in delinquent conduct by committing an offense of sexual assault. See Tex. Penal Code Ann. § 22.011. Specifically, the State alleged that appellant intentionally and knowingly caused the penetration of D.M.'s sexual organ, without her consent, and compelled D.M. to submit and participate by the use of physical force, threat, duress, and violence. Id. Appellant waived his right to a trial by jury, and the case proceeded to trial before the district court, sitting as a juvenile court. The most relevant testimony regarding the issues raised and our disposition came from: D.M.; D.M.'s grandmother;[3]and Angie Jones, a detective in the child abuse unit of the police department.

         D.M., who was fourteen years old at the time of the incident, testified that she and appellant were friends during middle school, and they had recently reconnected through Facebook. On the day of the incident, D.M.'s grandmother drove D.M. to a "Seven-Eleven" near appellant's apartment. The two had planned to play video games. While on the couch in appellant's apartment, appellant kissed D.M. She did not want appellant kissing her, and she felt nervous and scared. Then, appellant lead D.M. by her hand to his bedroom. D.M. did not want appellant to hold her hand, and she was "confused" and wondered "what was happening." Once in appellant's bedroom, he shut the door, put D.M. on his bed, and pulled down her blue jeans and underwear. D.M. felt scared and "frozen." Appellant then pulled his shorts down, got on top of her, and touched D.M.'s stomach, leg and arm with his hands. Appellant inserted his penis into D.M.'s vagina, and D.M. told appellant to stop. D.M. recalled being "really, really scared, " and she attempted to push appellant off of her. D.M. was initially unable to push appellant off of her because, according to D.M., he was "holding [her arms] to the side, " preventing her from raising them to push appellant away from her. D.M. "kept moving around trying to, like, get him off." Eventually, D.M. "had enough force to" push appellant off of her. She pulled up her pants, grabbed her personal belongings, called her grandmother to pick her up, and left appellant's apartment.

         Grandmother testified that when she picked up D.M., she appeared to be in "shock, " would not make eye contact, and was "quiet and different." After multiple inquires about what was wrong, D.M. answered that she had been raped. Grandmother turned the car back towards the apartment complex. Upon returning, grandmother told the apartment manager "what had happened, " and then she called the police.

         Detective Jones sponsored most of the forensic evidence. She confirmed that the shirt D.M. wore during the incident had gold sequins on it. Photographs admitted as evidence showed a small gold sequin on appellant's bed sheet. Jones performed a penile swab of appellant, and a gold sequin was found on his penis.

          The trial court adjudicated that appellant was a delinquent for committing sexual assault. See Tex. Fam. Code Ann. §§ 51.03, 53.045(a); Tex. Penal Code Ann. § 22.011. It assessed a determinate sentence of probation for five years. This appeal followed.

         II. Discussion

         Appellant argues that there is legally insufficient evidence to prove the State's allegation that appellant used physical force, threats, duress, or violence to compel D.M. The State responds that there is sufficient evidence to prove that appellant used physical force, threats, duress, or violence during the commission of the offense of sexual assault. Both parties agree that appellant did not sign a waiver of grand jury approval, but rather that the grand jury foreperson signed a certificate of approval.

         A. Sexual Assault Evidence

         1. Standard of Review ...


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