COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

I N THE MATT ER OF F .J .S., A J UVENI L E § § § § § § No. 08-08-00109- CV

Appea l from the 65th J udicial District Court of El Paso County , Texas (TC# 05-01099)

O P I N I O N F.J.S ., a juvenile, a

ppeals fr om an orde r adjudicating his delinquent c onduct by committing ag g ravated sexual assault of a c hild. A jury deter mined Appellant had e ng ag ed in the char g ed delinquent c onduct, and the tr ial court e ntere d an orde r of a djudication in acc ordanc e with the jury ’s finding . Findingthe evidenc e wa s leg ally sufficie nt to support the adjudication order , we a ffirm. Appellant and A .G. met when the ir pare nts became frie nds in 2003. A.G. was ten year s old, and Appellant wa s thirteen. A.G. a nd her sibling s were visiti ngAppellant’s f amily one afte rnoon, whe n Appellant sat down ne x t to A.G. while the re st of the household wa s having lunch in another

room. Appellant fondle d her br easts and buttocks, a nd inserted his fing ers into her va g ina. A.G. did not re port the abuse beca use Appe llant threate ned he w ould hit her, or hurt a member of her family
. A wee k later, A

ppellant was visiting A .G.’s fa mily at their a partment. A.G . was wa

tching
car toons in her mother’s be droom when A ppellant came into the room, pushed A.G. up a g ainst awall and inser ted his penis in her va g ina. The r est of the f amily was downstair s when the attack
occur red. A g ain, A.G. did not re port the attac k beca use Appe llant threate ned to hit her or hur t a member of

her f amily if she re ported the inc ident. Acc ordingto A.G., Appellant se x ually assaulted he r up to twenty times over the c ourse of

a y ear . Sometimes he would forc e her to have intercour se, sometimes he for ced he r to perf orm oral se x on him. He continued to thre aten he r with violence if she told any one about the a buse. A.G. made an outcr

y in May 2005. A.G. had spe nt the night at her a unt’s house while he r mother and stepf

ather wer e attending

a par ty . In the morning , A.G.’s mother called to c heck on the g irl and A.G.’ s aunt informed he r that A.G. ha d touched he r four -y ear -old cousin’s vag ina while the g irls were in the shower tog ether . When A.G.’s mother c onfronted A .G. about what happene d that morning , A.G. wa s frig htened a nd cry ing. E ventually

A.G. desc ribed what Appellant had done to her. A.G .’s mother c ontacted the police and r eporte d what her daug hter told her. Afte r the police interviewe d A.G., Appe llant was take n into custody and re fer red to the J uvenile Probation De partment. The State filed the orig inal petition based on delinquent c onduct on August 22, 2005. The pe tition allege d that on or about June 29, 2004, Appellant had e ng ag ed in delinquent conduc t by committing ag g ravated sexual assault ag ainst a child, A.G. The case was tried to a jury , who deter mined Appellant had e ng ag ed in the alleg ed delinquent c onduct. The tria l court ente red a n order adjudicatingAppellant delinquent on January 9, 2008. Appellant wa s sentence d to probation until his eightee nth birthday , and wa s order ed to complete the Challeng e B oot Camp Prog ram, a

nd participate in any

counselingdeeme d nece ssary due to his status as a sex offende r. In a sing le issue, Appellant c halleng es the leg al suffic iency of the e vidence supporting the
-2-trial court’ s determination that he e ng ag ed in delinquent conduc t by committing ag g ravated sexual assault of a child. He contends the a lleg ed victim’s cr edibility was in question g iven the lack of phy sical evide nce of

abuse, a nd the circ umstances of

her outc ry . In the alter

native, Appellant ar gues the de linquency finding must be reve rsed be cause the evidenc e esta blished an aff irmative def

ense pur suant to Texas Penal Code section 22.011(e )(2) (A); whic h provides, in part, that it is an af

firmative de fense to a prosec ution for sexual assault if the evidenc e esta blishes the ac tor was not more than three y ear s older than the vic tim at the time of the offe nse. See T E X .P E N .C O D E AN N . § 22.011(e) (2)( A)(V ernon Supp. 2009). Challeng es to the leg al suffic iency of the e vidence supporting the elements of a penal offe nse which f

orms the basis of the f

inding that a

juvenile eng ag ed in delinquent conduc t, are revie wed unde r the Jack

son v. Virginia , standard. 443 U .S. 307, 320, 99 S.C t. 2781, 2789-90, 61 L .Ed.2d 560 (1979); In the Matter of A.S. , 954 S.W .2d 855, 858 (Tex.App.--El Paso 1997, no pet.). Unde r this standard, we revie w all of the e vidence in the light most favor able to the verdic t, to determine whe ther a ny rational trier

of fa ct could have found the e ssential elements of the offe nse beyond a re asonable doubt. A.S. , 954 S.W .2d at 858. Appellant wa s adjudicate d delinquent base d on the jury ’s deter mination that he committed acts which satisfied the def inition of ag g ravated sexual assault of a c hild, as defined by Section 22.021(a) , of the Te x as Penal Code. In g ener al terms, a pe rson commits this offense by intentionally

or knowing ly

causing the pene tration of the a

nus or sexual org an of a

nother individual, who is not t he ac tor’s spouse, by any means, without the individual’s consent, a nd the actor , and the victim is y oung er tha n fourtee n. SeeT E X .P E N .C O D E AN N . § 22.021(a) . The jury in this case de termined Appe llant eng ag ed in delinquent beha vior by eng ag ing in the f

ollowing a cts:
-3-(1) by

intentionally

or knowing ly

causingthe pene tration of the victim’s fe male sexual org an with his finge r; (2) by

intentionally

or knowing ly

causingthe pene tration of the victim’s fe male sexual orga

n with his sex ual org an; and ( 3) by intentionally

or knowing ly

causingthe pene tration of the victim’s anus with his sexual org an. In the first par

t of I ssue One, A

ppellant ca lls the alleg ed victim’s cr edibility into question based on the lack of

witnesses to the alleg ed abuse , the fre quency of the attacks, the lac k of phy sical evide nce of

abuse, a nd the circ umstances of

the victim’s outcry . Appellant does not challeng e the a dmissibi lity of the testimony , nor does he contend ther e is a lac k of evide nce of any one of the essential ele ments of the cha rg ed off ense. A ppellant simply

conclude s that the victim’s testimony

was insuffic ient to support the jury ’s ver dict, and ther efor e does not support the cour t’s delinquency

finding
. To sustain Appellant’s a

rgument, this Court would be force d to disreg ard the para meters of the leg al suffic iency

revie w. The r ole of the a ppellate c ourt in a leg al suffic iency revie w is limit ed to deter

mining whe ther the f

indings, both implicit and expl icit, of the trier of fa ct ar e rational. See A delman v. State , 828 S.W .2d 418, 421-22 (Te x .Crim.App. 1992). We do so by viewingall the evidenc e admitted at tria l, and by resolvingany

inconsistencies, in the lig ht most favor able to the ve rdict. See id . I t is for the trier of fa ct, not the appe llate cour t, to determine witness cre dibilit y ; and in doing so the fac t finder may acc ept or re

ject all or a

ny part of a ny witness’s testimony
. Matson v. State , 819 S.W .2d 839, 843 (Tex.Crim.App. 1991). In short, we c annot simply disreg ard the victim’s testimony in this case base d on Appellant’s c onclusion that her testimony was not cr edible. We ar e bound by the standar d of revie w which g overns the issue A ppellant has pre sented to us, and ther efor e we must view all the

-4-evidenc e admitted at tria l in the light most favora ble to the ver dict. See A .S. , 954 S.W .2d at 858; T E X .R.A P P .P. 38.1(f), (i) . Given the unc ontested fa ct that the victim did testify reg ardingthe alleg ed abuse in this case, viewingthe evidenc e the lig ht most favorable to the verdic t, the evidenc e wa s leg ally

sufficie nt to support the delinquency finding
. In the alter

native, Appe llant contends the de linquency finding must be reve rse be cause the re cord suppor

ts his affirmative de fense ; that is, he was not more tha n three y ear s older than the victim at the time of the a lleg ed abuse . Appellant re fer s to Texas P enal Code se ction 22.011(e) in his argument, which states in re levant par t that: (e) it is an affirmative defe nse to prosec ution under Subsection (a )(2) :

. . . (2) that: (A) the ac tor was not more than three y ear s older than the

victim and at the time of the of fense : (i) was not re quired unde r Chapter 62, Code of Criminal Procedure , to reg ister for life as a se x offe nder; or (ii) was not a pe rson who under Chapter 62, Code of Criminal Procedure , had a r eporta ble conviction or adjudication for

an off ense unde r this section; and (B ) the victim: (i) was a

child of 14 y ear s of ag e or olde r; and (ii) was not a pe rson whom the ac tor was pr ohibited from mar rying or purportingto marry

or with whom the ac tion was prohibited from livingunder the appea ranc e of be ing ma

rried unde r Section 25.01. T E X .P E N .C O D E AN N . § 22.011(e) (Ve rnon Supp. 2009). In addition to severa l other re quirements not addr essed in Appe llant’s brief, this
-5-aff

irmative def

ense spe cifies that it is applicable to prosecution for a Sexual Assault offense prosec uted under

Section 22.011. See id . Appellant wa s prosec uted for A g g rava ted Sexual Assault under Sec tion 22.021. Section 22.021 does not include such a de fense , nor does it ref ere nce the defe nse provided in Sec tion 22.011. SeeT E X .P E N .C O D E AN N . § 22.021. 1 Acc ording ly , Appellant’s se cond arg ument is overrule d, and we overr ule the entire ty

of I ssue One. Havingoverr

uled Appellant’ s sole issue, we a ffirm the tria l court’s orde r of a djudication.

May 26, 2010 DAVI D WEL L I NGTONCHEW, C hief Just ice Be fore Chew, C.J ., McClure, a nd Rivera, JJ
.

We also note that the jury char g e, without objection, did not include an instruction 1 reg ardingan af

firmative de fense to the char g ed off enses. -6-