## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 15

- 00053

- CR

MIKEL EUGENE HALL, JR., Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from the 5th District Court Cass County, Texas Trial Court No. 2013

- F

- 00107

Before Morriss, C.J., Moseley and Carter*, JJ. Memorandum Opinion by Chief Justice Morriss

______________________________________ *Jack Carter, Justice, Retired, Sitting by Assignment2 

### MEMORANDUM OPINION Mikel Eugene Hall, Jr. , was convicted by a Cass County jury of sexually assaulting a child,
Olivia. 1 See T EX
. P ENAL C ODE A NN
. § 22.011(a)(2)(A) (West 2011 )

. Hall appeals, claiming the evidence was legally insufficient to establish that he digitally penetrated the child’s sexual organ. While the direct evidence from Olivia is arguable, there is other evidence of vaginal penetration,
which we find sufficient. Therefore, we affirm the trial court’s judgment. 2 In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the trial court ’ s judgment to determine whether any rational jury could have found the essential
elements of the offense beyond a reasonable doubt. Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) ( citing Jackson v. Virginia , 443 U.S. 307, 319 (1979)); Hartsfield v. State , 305 S.W.3d 859, 863 (Tex. App.

— Texarkana 2010, pet. ref ’ d). We examine legal suffi ciency under
the direction of the Brooks opinion, while giving deference to the responsibility of the jury “ to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts. ” Hooper v. S tate , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing
Jackson , 443 U.S. at 318

– 19); Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically co rrect jury charge. Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
The “ hypothetically correct ” jury charge is “ one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State ’ s burden of proof or unnecessarily restrict

1 We use a pseudonym to protect the minor complainant’s privacy.

2 Hall was also indicted and convicted for indecency with a child; he does not challenge that conviction.3

the State ’ s theories of liability, and adequately describes the particular offense for which the
defendant was tried. ” Id . at 240. Hall argues that, because Olivia failed to directly testify that Hall penetrated her sexual
organ with hi s finger, there is no evidence of such penetration. Olivia described Hall’s abuse starting when she was about seven years old, when he and Olivia’s mother still lived together.
Olivia said Hall made her take off her clothes. Olivia said Hall would touch her “[i]n the breast and the vaginal area.” In support of his appellate argument, he points to the following excerpt from Olivia’s testimony:

[The State] : And what exactly did he do? Did he touch you with one hand or both hands? [Olivia] : I don’t remember. [The State] : Okay. Do you remember what he did when he touch[ed] your vaginal area? Did he use his hand or his fingers or something else? [Olivia] : His fingers. [The State] : Okay. Did he use one finger, two fingers, or

- - [Ol ivia] : I don’t know. [The State] : You don’t remember, okay. Do you remember if he inserted his fingers inside you? [Olivia] : Yes, ma’am. [The State] : Yes, okay. Now, did that happen more than one time

-- did it happen more than that at that old house in Hughes Springs? [Olivia] : Yes, ma’am.4

Hall argues that, o ther than agreeing with the State ’s question of whether she “ remember [ ed ] if he inserted his fingers,” Olivia never directly said he penetrated her sexual organ with his finger. Therefore, urges Hall, there is no evidence of digital penetration. We do not agree with Hall’s limitation of the scope of the record. He lodged no objection
to th e State’s questioning of Olivia or the form of the State ’s question, “Do you remember if he inserted his fingers inside you?” We recognize Hall’s point that the question , as posed, considered
with Olivia’s affirmative answer, could be under stood as Olivia ’s indication that she remembered whether Hall inserted his fingers inside her vagina while stop ping short of actually saying that he did in fact penetrate her. This arguable ambiguity, combined with Olivia’s statements that Hall
touched he r around her breasts and vaginal area, does raise a question regarding direct evidence of digital penetration. But Hall would finesse the testimony of Melissa Davison, a forensic interviewer, that Olivia described to Davison Hall’s abuses over the years. 3 Davison testified that Olivia told her Hall put his fingers inside Olivia’s vagina. This is evidence supporting the State’s allegations.
Ha ll only mentions this testimony and points to the absence of medical testimony, such as from a
sexual assault nur s e examiner, in his argument that there is no evidence to prove penetration. Whether Olivia’s testimony was sufficient to support a reasonable inference 4 that Hall digitally penetrated her vagina, Davison’s testimony was sufficient to prove the allegation

. 5

3 Davison testified under the provisions of Article 38.072 of the Texas Code of Criminal Procedure. See T EX
. C ODE C RIM
. P ROC

. A NN
. art

. 38.072 (W est Supp

. 20 14 )

.
4 See Hooper v. State , 214 S.W.3d 9, 16 (Tex. Crim. App. 2007).

5 Additionally, it was for the jury to weigh the credibility of the witnesses. See id. at 13.5

We affirm the trial court’s judgment.

Josh R. Morriss, III Chief Justice
Date Submitted: October 30, 2015 Date Decided: November 2 , 2015
Do Not Publish