Appeal from the 119th District Court Tom Green County, Texas
Court Case No. B-16-0472-SA
consists of Justices Keyes, Lloyd, and Goodman.
OPINION ON REHEARING
Prestiano has moved for rehearing of our March 26, 2019
opinion and judgment. We deny his motion for rehearing,
withdraw our opinion and judgment of March 26, 2019, and
substitute the following opinion and judgment in its place.
appeals from three judgments of conviction for aggravated
sexual assault of a child younger than six years old. He
(1)as to the third count in the indictment only, the evidence
is legally insufficient to sustain his conviction, in which
the State alleged that he penetrated the child's mouth
with his penis;
(2)the trial court erred in overruling his hearsay objections
to a picture of sex toys drawn by the child during therapy
and her counselor's testimony that the child drew the
toys to explain what Prestiano did to her; and
(3)his trial lawyer rendered ineffective assistance by not
lodging a hearsay objection to the therapist's testimony
about the child's use of dolls and drawings to
communicate the circumstances of her abuse.
reject Prestiano's evidentiary and ineffective-assistance
claims. As to the third count, we agree that the evidence is
legally insufficient to prove beyond a reasonable doubt that
Prestiano penetrated the child's mouth with his penis.
The evidence is sufficient, however, to sustain a conviction
for the lesser-included offense of aggravated sexual assault
by contact. We thus reform his judgment of conviction under
the third count to reflect a conviction for the
lesser-included offense, affirm his other two judgments of
conviction, and remand to the trial court for a new
punishment hearing as to the reformed conviction for the
was indicted for three counts of aggravated sexual assault of
a child younger than six years old. See Tex. Penal
Code § 22.021(a)(1)(B), (a)(2)(B). All counts concerned
a girl for whom he babysat. In the first count, the State
alleged that Prestiano contacted the child's sexual organ
with his mouth. See id. § 22.021(a)(1)(B)(iii).
In the second count, the State alleged that he contacted the
child's sexual organ with his penis. See id. In
the third count, the State alleged that Prestiano penetrated
the child's mouth with his penis. See id. §
pleaded not guilty, and the case was tried to the bench.
child was seven years old when she took the stand. She
testified that Prestiano sexually abused her. Specifically,
the child stated that he would touch her "private part
and stuff." She clarified that by "private
part" she meant her "pee-pee." Prestiano would
touch her there with "weird toys and his hands" and
sometimes his mouth. She said that he put the toys inside of
her-that is, that Prestiano would put them in her
"private part." She initially could not recall what
the toys looked like but did remember drawing a picture of
them in therapy. Subsequently, however, she recalled that one
of the toys "was green and it vibrated when he pressed a
button or something." When shown a photo of the green
device and another vibrator, she recognized both. He kissed
her on the mouth and on her "private part." She
also said that he made her touch his "private part"
sometimes, including with her finger and mouth. When she
referred to his "private part" she meant the body
part used to go "pee-pee." She stated that he would
slide his private part "up and down on my private
part." She also said that "gray stuff" came
out of his "private part." She said that he abused
her "a lot."
child's mother also testified. Her daughter made her
outcry to her mother, disclosing Prestiano's abuse,
several days after Christmas 2015, when she was five years
old. The mother testified that her daughter was "a
little fearful" and was "afraid she would get in
trouble." The child indicated to her mother that
Prestiano touched her genitals with his tongue. When the
mother asked her daughter if "she wanted to see a
policeman" about the abuse, the child "started
crying and said that she didn't want to be
arrested." Her mother contacted Child Protective
Services so that a uniformed officer would not be directly
involved. Her daughter was interviewed by a child advocate,
while a police officer listened in from another room.
child subsequently began seeing a therapist, Vickie Purdy,
who likewise testified. Purdy is a licensed professional
counselor. She treated the child weekly from February through
April 2016. Purdy stated that the child "had a lot of
anxiety and fear, some feelings of guilt that she hadn't
said anything for so long." The child "had
nightmares and drew pictures." Because the child was so
young, Purdy primarily used "non-directive,
child-centered play therapy." Over defense counsel's
objection, Purdy testified that the child demonstrated with
dolls what had happened to her. Purdy also testified over
objection about a drawing the child made of "some toys
that had been used with her."
enforcement officers seized two vibrators-one lime green and
the other black with multihued rhinestones-from
Prestiano's home during a search. A forensic analyst with
the Texas Department of Public Safety analyzed the sex toys
for DNA. Two samples taken from the green vibrator showed
that DNA from two people were present, and the child could
not be excluded as a "possible contributor" to this
mixture of DNA. Two samples from the other vibrator showed
mixtures of DNA from two and three people respectively. The
child could not be excluded from these samples, either.
took the stand in his own defense. He testified that he
babysat the child "quite a bit" at her parents'
home. He denied touching her inappropriately, kissing her
"anywhere that would have seemed inappropriate," or
using a vibrator on her. He acknowledged that the green and
black vibrators were his. As an explanation for the DNA
evidence, Prestiano stated that the child discovered the
green vibrator after going through his backpack, which he
usually carried with him. He was not certain if she also had
come across the black vibrator, or how she did so if she did,
but indicated that it also was in his backpack. He testified
that he had not realized that the vibrators were in the
backpack, explaining that he thought that he "had thrown
those out more than once" but that they kept turning up.
He said that the vibrators "may have been in there for
years" and that he had "thought they were long
gone." When the child found the green vibrator and
showed it to him, Prestiano told her that it was a "toy
lipstick" but she nonetheless asked: "'Is it
for,' and motioned down." Prestiano explained that
that he had seen the child use her own toys "on her
genitals." According to him, the child asked him
questions of an adult or sexual nature that made him
uncomfortable "quite frequently." He further
testified that the child was generally naked at home, saying
that it "was rare that she ever had clothes on."
trial court found Prestiano guilty of the three counts, and
it entered separate judgments of conviction for each one. It
assessed his punishment at 50 years of confinement on each
count and ordered that the sentences run concurrently.
contends that there is insufficient evidence to sustain his
conviction for the third count of aggravated sexual assault
of a child, in which the State alleged that he penetrated the
child's mouth with his penis. The State disagrees but
further responds that if the court agrees with Prestiano, it
should reform his conviction to one for aggravated sexual
assault of a child by contact. Prestiano contends that the
court cannot do so because aggravated sexual assault of a
child by contact is not a lesser-included offense of
aggravated sexual assault of a child by penetration.
Standard of review and applicable law
legal-sufficiency review, we view the evidence in the light
most favorable to the judgment to determine whether a
rational factfinder could have found the essential elements
of the crime beyond a reasonable doubt. Gear v.
State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011)
(relying on Jackson v. Virginia, 443 U.S. 307
(1979)). In a bench trial, when the trial court sits as the
sole factfinder, it alone assesses the credibility of the
witnesses and decides how much weight to give each
witness's testimony, which it may choose to believe or
disbelieve in whole or part. Joseph v. State, 897
S.W.2d 374, 376 (Tex. Crim. App. 1995); Hernandez v.
State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1972). We
defer to the trial court's resolution of conflicts in the
evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010).
statute criminalizing aggravated sexual assault of a child
sets forth several distinct offenses. Vick v. State,
991 S.W.2d 830, 833 (Tex. Crim. App. 1999). A person may
commit an aggravated sexual assault of a child in several
ways, including by intentionally or knowingly causing:
• the child's mouth to contact his penis, or
• the penetration of the child's mouth by his penis,
if the child is younger than 14 years of age, regardless of
whether the person knew the child's age. See
Tex. Penal Code § 22.021(a)(1)(B), (a)(2)(B); Smith
v. State, 340 S.W.3d 41, 48 (Tex. App.-Houston [1st
Dist.] 2011, no pet.). The uncorroborated testimony of the
child is sufficient, standing alone, to support a conviction.
Gonzalez v. State, 522 S.W.3d 48, 57 (Tex.
App.-Houston [1st Dist.] 2017, no pet.). The child need not
directly and explicitly testify as to contact or penetration
with the same clarity and ability of an adult witness to
prove these facts beyond a reasonable doubt. See Villalon
v. State, 791 S.W.2d 130, 133-35 (Tex. Crim. App. 1990).
third count of the indictment, the State alleged that
Prestiano intentionally penetrated the child's mouth with
his penis. The child's testimony was the supporting
evidence on this subject. In response to questions posed by
the State, the child testified as follows:
Q. Did any part of you ever touch his private part?
A. I think my finger and my mouth, but he forced me to do it.
Q. You're not in trouble, babe.
A. I know.
Q. Okay. So, did his private part touch your mouth? Did it
ever go inside of your mouth?
A. I think it just touched it a little bit.
* * *
Q. His private part touched your ...