In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-18-00162-CR

___________________________

On Appeal from the 431st District Court

Denton County, Texas

Trial Court No. F16-2011-431

Before Sudderth, C.J.; Gabriel and Womack, JJ.

Memorandum Opinion by Justice Womack

MAGDIEL VALENCIA JR., Appellant

V.

THE STATE OF TEXAS
2

MEMORANDUM OPINION

I. INTRODUCTION

A jury convicted Magdiel Valencia Jr. of the offense of attempted sexual 

assault. Valencia sought punishment from the trial court, which sentenced him to 

confinement for ten years. In a single issue, Valencia challenges the sufficiency of the 

evidence to support his conviction. We affirm the trial court’s judgment.

II. BACKGROUND

A. Investigation

On November 12, 2015, Detective Trevor Taylor of the Frisco Police 

Department began an investigation into a reported sexual assault by Valencia on 

Jacqueline1at Massage Envy in Frisco, Denton County, Texas. As a result of that 

investigation, Taylor identified and contacted other Massage Envy clients, including 

Kimberly and Julie. 

On February 16, 2016, Taylor called and spoke with Kimberly about her 

experience at Massage Envy. Kimberly, who was in the presence of her husband 

during the call, immediately “broke down.” Kimberly subsequently spoke several 

times with Taylor by telephone, and those conversations were recorded. Although 

Jacqueline’s report of sexual assault triggered the investigation, Valencia was 

 

1We have replaced the names of the clients with pseudonyms.
3

eventually indicted for committing the offense of attempted sexual assault on 

Kimberly. 

B. Trial

1. Kimberly’s Testimony

On October 17, 2015, a few weeks after her father had died, Kimberly visited 

Massage Envy in Frisco. Kimberly had received only one other massage and that was 

approximately two years earlier. 

Valencia was Kimberly’s massage therapist and was the first male from whom 

she had received a massage. Kimberly completed forms and specified problem areas 

including her neck and upper back and noted that she had varicose veins in her legs. 

After Valencia led Kimberly to the massage room, they discussed her 

paperwork, and Valencia informed Kimberly that he would be unable to massage her 

legs due to her varicose veins. After Valencia left the room, Kimberly undressed 

down to her thong underwear and laid face-down on the massage table under a sheet 

that covered her body up to her armpits. 

Valencia reentered the room and began massaging the head area of Kimberly’s 

upper back and shoulder area and then moved to her left side and began caressing her 

hand by interlocking fingers in a very sensual way, which Kimberly demonstrated at 

trial. Valencia took Kimberly’s hand, repeatedly rubbed it against the crotch of his 

pants, and began breathing audibly. According to Kimberly, although she could feel 
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Valencia’s erection, she thought to herself, “[T]his can’t be happening[,]” and said 

nothing at the moment because she was “frozen.” 

As he began massaging Kimberly’s back, Valencia’s body was touching the top 

of her head. Kimberly was unable to see whether it was Valencia’s crotch touching 

her head. Valencia moved to Kimberly’s right side and began rubbing her right hand 

against his crotch. Valencia began massaging Kimberly’s upper thigh in a kneading 

motion, which caused Kimberly’s underwear to go “in between” and expose her 

vagina and “butt.” Using a mannequin, Kimberly demonstrated how Valencia had 

repeatedly used his finger, made skin-to-skin contact, and touched her labia for a 

period “much longer” than “a few seconds.”2 Kimberly “[could not] believe this 

[was] happening[]” and admitted that there were portions of her experience that she 

could not remember. However, she remembered that while she was on her back, 

Valencia repeated the same contact of her leg and labia, making skin-to-skin contact 

and remaining within an inch of her labia when not making contact. Kimberly

noticed Valencia’s breathing had become audible. 

At the end of the session, Valencia left the room, and Kimberly dressed. 

Valencia returned and asked Kimberly whether she “was okay.” Kimberly paid, 

entered her car, and cried. She left without reporting her experiences to Massage 

 

2Overruling defense counsel’s objections, the trial court permitted the State to 

question Kimberly while using demonstrative evidence, including a table, a 

mannequin, and a sheet. 
5

Envy, the police, or her husband because she was ashamed and was dealing with her 

father’s death. The recorded telephone conversations between Taylor and Kimberly

arising from Taylor’s initial investigation of the case were admitted into evidence, and 

portions were later published to the jury. 

2. Evidence of Intent or Absence of Mistake or Accident

The trial court allowed the State to offer through Julie and Jacqueline evidence 

that Valencia may have committed wrongful acts other than those charged in the 

indictment and repeatedly instructed the jury (1) that such evidence was to be 

considered only for the limited purpose of showing Valencia’s intent or absence of 

mistake or accident with respect to the charged offense and (2) that consideration of 

the evidence for any other purpose would be improper. 

a. Julie’s Testimony

During Julie’s massage at Massage Envy in Frisco on November 11, 2015, 

Valencia massaged her upper thigh area in an up-and-down and then side-to-side 

motion and began massaging beneath her underwear, which made Julie

uncomfortable. Valencia continued, placed his hand close to Julie’s vaginal opening, 

made skin-to-skin contact, and then over five or six minutes touched but did not 

penetrate her vaginal opening several times. Julie “kind of froze and . . . was 

embarrassed” but did not say anything to Valencia. While Julie was on her back, 

Valencia again massaged her beneath her underwear and did “[t]he same thing.” Julie

knew this was wrong but did not know what to say and did not speak up. Although 
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Julie pulled her sheet up repeatedly, Valencia pushed the sheet down and massaged 

Julie’s breasts inappropriately, skin-to-skin, below the sheet. Julie did not say anything 

but began to cry. Although Julie had specified before her massage began that she did 

not want her face touched, for several minutes Valencia nevertheless caressed Julie’s 

lips and ear sensually and pulled on her ear. Julie did not speak up and waited “for it 

to be over.” After she dressed, Julie complained to the front office and filed a 

complaint against Valencia. 

b. Jacqueline’s testimony

On November 12, 2015, Jacqueline went to Massage Envy in Frisco with her 

mother and sister. On a form completed prior to her massage, Jacqueline specified 

that it was acceptable for her face, scalp, and gluteus maximus area to be massaged. 

Jacqueline noticed that Valencia was focusing the massage high on her inner, upper 

thighs in the area where the thigh muscle meets the crotch, about one inch from 

Jacqueline’s vagina. Jacqueline was in denial and did not want to think anything 

terrible was happening to her. While on her back, Valencia used a lot of painful 

pressure to massage Jacqueline’s inner groin area and “basically touch[ed]” her vagina,

touched her genitals with his hand, rubbed her “clitoris and outside,” and then placed 

his finger inside Jacqueline’s vagina. Valencia’s breathing was “rather hard,” and 

when she opened her eyes, Valencia’s face was inches from Jacqueline’s with his 

mouth open and his tongue sticking out as if to kiss her. When Jacqueline asked, 

“[W]hat are you doing?,” Valencia responded, “Okay.” Jacqueline believed that she 
7

was sexually assaulted although she initially tried to convince herself during the 

massage that it was not happening. Jacqueline described herself as “frozen in my 

head” while she thought of what she should do, and Valencia then said, “[O]kay, 

we’re finished with this session.” Jacqueline informed a manager about Valencia’s 

acts and then waited for and spoke with police and informed them that Valencia had 

placed his finger inside her vagina. 

III. DISCUSSION

A. Sufficiency of the Evidence

In a single issue, Valencia contends that the evidence was not sufficient to 

convict him of attempted sexual assault. We disagree.

1. Standard of Review

Federal due process requires that the State prove beyond a reasonable doubt 

every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 

2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiarysufficiency review, we view all the evidence in the light most favorable to the verdict 

to determine whether any rational factfinder could have found the crime’s essential 

elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; 

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard gives full 

play to the factfinder’s responsibility to resolve conflicts in the testimony, to weigh the 

evidence, and to draw reasonable inferences from basic facts to ultimate facts. See 

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Queeman, 520 S.W.3d at 622.
8

The factfinder alone judges the evidence’s weight and credibility. See Tex. Code 

Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622. Thus, when performing an 

evidentiary-sufficiency review, we may not re-evaluate the evidence’s weight and 

credibility and substitute our judgment for the factfinder’s. Queeman, 520 S.W.3d at 

622. Instead, we determine whether the necessary inferences are reasonable based on 

the evidence’s cumulative force when viewed in the light most favorable to the 

verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); see Villa v. State, 

514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The court conducting a sufficiency 

review must not engage in a ‘divide and conquer’ strategy but must consider the 

cumulative force of all the evidence.”). We must presume that the factfinder resolved 

any conflicting inferences in favor of the verdict, and we must defer to that resolution. 

Murray, 457 S.W.3d at 448–49.

The standard of review is the same for direct and circumstantial evidence cases; 

circumstantial evidence is as probative as direct evidence in establishing guilt. Jenkins

v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). We must scrutinize 

circumstantial evidence of intent as we do other elements of an offense. Laster v. State, 

275 S.W.3d 512, 519–20 (Tex. Crim. App. 2009). But when a record supports 

conflicting inferences, we “must presume—even if it does not affirmatively appear in 

the record—that the trier of fact resolved any such conflict in favor of the 

prosecution, and must defer to that resolution.” Matson v. State, 819 S.W.2d 839, 846 

(Tex. Crim. App. 1991).
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2. Applicable Law

A person commits the offense of sexual assault if he intentionally or knowingly, 

without the complainant’s consent, causes the penetration of the anus or sexual organ 

of another person by any means.3 Tex. Penal Code Ann. § 22.011(a)(1)(A). A person 

acts intentionally, or with intent, with respect to the nature of his conduct or to a 

result of his conduct when it is his conscious objective or desire to engage in the 

conduct or cause the result. Id. § 6.03(a). A person acts knowingly, or with 

knowledge, with respect to the nature of his conduct or to circumstances surrounding 

his conduct when he is aware of the nature of his conduct or that the circumstances 

exist. Id. § 6.03(b). A person acts knowingly, or with knowledge, with respect to a 

result of his conduct when he is aware that his conduct is reasonably certain to cause 

the result. Id. 

To attempt to commit sexual assault, the actor must have specific intent to 

commit the offense, which is established when the person does an act amounting to 

more than mere preparation that tends but fails to affect the commission of the 

intended offense. Id. § 15.01(a). The element “with specific intent to commit an 

offense” has traditionally been interpreted to mean that the actor must have the intent 

to bring about the desired result. See, e.g., Flanagan v. State, 675 S.W.2d 734, 741 (Tex. 

Crim. App. [Panel Op.] 1982). Generally, a person’s intent to commit an offense 

 

3Because they are not relevant to our analysis in this case, we have omitted the 

other means by which the offense of sexual assault may be committed. 
10

must be established by circumstantial evidence and may be inferred from the person’s 

acts, words, and conduct, as well as the surrounding circumstances. See Hernandez v. 

State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991); Romo v. State, 568 S.W.2d 298, 304 

(Tex. Crim. App. 1977) (stating that actor’s intent to complete the offense may be 

inferred from his acts). To prove that Valencia committed attempted sexual assault, 

the State was required to show that Valencia, with specific intent to commit sexual 

assault against Kimberly, performed an act—touching the sexual organ of Kimberly

with Valencia’s finger—that amounted to more than mere preparation that tended, 

but failed, to effect the commission of the offense. See Tex. Penal Code Ann. 

§§ 15.01(a), 22.011(a)(1)(A). 

B. Analysis

1. Terminology

Valencia’s challenge to the sufficiency of the evidence to support his conviction 

is founded in part on his assertion that the State was required to prove that he had 

attempted but had failed to touch a specifically identified portion of Kimberly’s sexual 

organ and that the State’s witnesses’ testimony was general and non-specific. Valencia 

specifically complains that the State’s witnesses failed to use specific terms to 

differentiate the component parts of “the female sexual organ” and instead used 

general terms, which rendered it impossible for a rational jury to find that he 

knowingly or intentionally attempted to penetrate Kimberly’s sexual organ. 

Essentially, Valencia asserts that the jury could properly reach its verdict only by 
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concluding that he had attempted but failed to touch Kimberly’s sexual organ beyond 

the labia majora and argues that because the testimonial evidence at trial only generally 

referred to “labia”—rather than specifically to the terms “labia majora,” “labia 

minora,” or to a particular labium—and to the vernacular term “vagina,” the evidence 

is insufficient to permit a rational juror to deduce that he tried but failed to penetrate 

Kimberly’s female sexual organ. 

The attempted sexual assault offense alleged in this case did not require an act 

of penetration, and the State’s burden was not to prove penetration of Kimberly’s 

female sexual organ. See Steadman v. State, 280 S.W.3d 242, 247–48 (Tex. Crim. App. 

2009) (explaining that vaginal penetration is not required; only penetration of the 

female sexual organ). Rather, the State was required to prove that with the specific 

intent to commit sexual assault, Valencia performed an act, alleged to have been the 

touching of Kimberly’s female sexual organ with Valencia’s finger, that amounted to 

more than mere preparation that tended, but failed, to effect the commission of 

sexual assault. The court of criminal appeals has observed that “female sexual organ” 

is a common term that has not acquired a technical meaning, and jurors are permitted 

to interpret the term according to common usage. Green v. State, 476 S.W.3d 440, 445 

(Tex. Crim. App. 2015) (holding that court of appeals correctly determined that trial 

court’s inclusion of non-statutory definitions of terms “penetration” and “female 

sexual organ” in jury charge was improper because they are common terms that have 

not acquired a technical meaning).
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In the application section of his brief, Valencia attempts to rely on Justice 

Dauphinot’s dissent in Rushton v. State, No. 02-11-00419-CR, 2013 WL 709060, at *8 

(Tex. App.—Fort Worth Feb. 28, 2013, no pet.) (mem. op., not designated for 

publication) (Dauphinot, J. dissenting) (discussing the use or misuse of specific 

terminology relating to the female sexual organ). Rushton is distinguishable in part

because the indictment in that case alleged multiple offenses—none of which 

involved attempt as this case does—and unlike this case, the appellant in Rushton

challenged the jury charge for its failure to specify the manner of contact. 2013 WL 

709060, at *1. 

2. Sufficient Evidence

Valencia posits that although Julie’s and Jacqueline’s testimony was offered as 

evidence that he had acted intentionally and knowingly when touching Kimberly, that 

evidence bears no connection to Kimberly’s claim of attempted sexual assault and did 

not permit the jury to conclude that he had attempted but failed to penetrate 

Kimberly’s sexual organ. However, as the trial court repeatedly cautioned the jury 

during trial, Julie’s and Jacqueline’s testimony was admitted for the limited purpose of 

showing Valencia’s intent or absence of mistake or accident in relation to the 

commission of the offense. See Tex. R. Evid. 404(b)(2) (stating that evidence of a 

crime, wrong, or other act may be admissible for purposes of proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack 

of accident).
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Moreover, the jury was permitted to infer Valencia’s intent from his acts, 

words, and conduct, as well as the circumstances surrounding those acts, words, and 

conduct. See Hernandez, 819 S.W.2d at 810; Romo, 568 S.W.2d at 304. The acts and 

conduct that support the jury’s inference of intent were established by Kimberly’s 

testimony that Valencia had massaged her hands sensually, had placed her hands on 

his erect penis, had “kneaded” her upper thighs near her buttocks so as to expose her 

vaginal area, had touched or grazed her labia with his finger or hand repeatedly while 

Kimberly was on her stomach and back and had rubbed her within one inch of her 

labia, and had begun breathing audibly as the massage therapy session progressed. 

After viewing the record in the light most favorable to the verdict, we conclude 

that a rational juror could have found that Valencia, with specific intent to commit 

sexual assault, performed an act—touching Kimberly’s female sexual organ with 

Valencia’s finger—that amounted to more than mere preparation that tended, but 

failed, to effect the commission of the offense. See Tex. Penal Code Ann. §§ 15.01(a), 

22.011(a)(1)(A). Because the evidence is sufficient to support Valencia’s conviction 

for the offense of attempted sexual assault beyond a reasonable doubt, we overrule 

Valencia’s sole issue.

IV. CONCLUSION

Having overruled Valencia’s sole issue, we affirm the trial court’s judgment.
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/s/ Dana Womack

Dana Womack

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: July 3, 2019