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 Assignment
2

MEMORANDUM OPINION

Mikel Eugene Hall, Jr., was convicted by a Cass County jury of sexually assaulting a child, 

Olivia.1See TEX. PENAL CODE ANN. § 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 sufficiency 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. State, 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 correct 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 

 

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

2Hall 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 his 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 --

[Olivia]: 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, other 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 the 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 understood as Olivia’s indication that she remembered 

whether Hall inserted his fingers inside her vagina while stopping short of actually saying that he 

did in fact penetrate her. This arguable ambiguity, combined with Olivia’s statements that Hall 

touched her 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. 

Hall only mentions this testimony and points to the absence of medical testimony, such as from a 

sexual assault nurse examiner, in his argument that there is no evidence to prove penetration. 

Whether Olivia’s testimony was sufficient to support a reasonable inference4that Hall digitally 

penetrated her vagina, Davison’s testimony was sufficient to prove the allegation.

5

 

3Davison testified under the provisions of Article 38.072 of the Texas Code of Criminal Procedure. See TEX. CODE 

CRIM. PROC. ANN. art. 38.072 (West Supp. 2014).

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

5Additionally, 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

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