MODIFY, REFORM and AFFIRM; and Opinion Filed September 20, 2013.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-12-00715-CR

ADRIAN V. BARRERA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 203rd Judicial District Court

Dallas County, Texas

Trial Court Cause No. F07-30801-P

MEMORANDUM OPINION

Before Justices Bridges, Fillmore, and Lewis 

Opinion by Justice Fillmore

A jury convicted Adrian V. Barrera of sexual assault of a child and assessed punishment

of ten years’ imprisonment. In four points of error, Barrera asserts (1) the evidence is legally 

insufficient to support the sexual assault conviction, (2) there is insufficient evidence to support 

the trial court’s order requiring him to pay $586 in court costs, (3) the judgment should be 

reformed to reflect the statute he was found to have violated, and (4) the judgment should be 

reformed to reflect the names of the prosecutors who tried the case on behalf of the State. We 

modify and affirm the trial court’s judgment. We issue this memorandum opinion because the 

law to be applied in the case is well settled. TEX. R. APP. P. 47.4.
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Background

Barrera was charged in two cases with the second-degree felony of sexual assault of a 

child. In the case that is the subject of this appeal, cause number F07-30801-P, Barrera was 

charged with intentionally and knowingly causing the penetration of the mouth of S.G., a child 

who was not Barrera’s spouse, by Barrera’s sexual organ. In cause number F07-30786-P, which 

is not a subject of this appeal, Barrera was charged with intentionally and knowingly causing the 

contact and penetration of the sexual organ of S.G., a child who was not Barrera’s spouse, by 

Barrera’s sexual organ. Barrera pleaded not guilty to both charges. The charges were tried 

before a jury. The jury found Barrera not guilty in cause number F07-30786-P of sexual assault 

of S.G. by contact and penetration of her sexual organ, but found Barrera guilty in cause number 

F07-30801-P of sexual assault of S.G. by penetration of her mouth. In cause number F07-30801-

P, the jury assessed punishment of ten years’ imprisonment. The trial court also ordered Barrera 

to pay $586.00 in court costs. 

Sufficiency of the Evidence

In his first point of error, Barrera contends the evidence is insufficient to support his

conviction for sexual assault. The jury found Barrera guilty of intentionally and knowingly 

causing the penetration of S.G.’s mouth by Barrera’s sexual organ. According to Barrera, 

because the jury did not find Barrera guilty of the additional charge of intentionally and 

knowingly causing the contact and penetration of S.G.’s sexual organ by Barrera’s sexual organ,

there is insufficient evidence to support the conviction for sexual assault by penetration of S.G.’s 

mouth by Barrera’s sexual organ.

We review the sufficiency of the evidence under the standard set out in Jackson v. 

Virginia, 443 U.S. 307 (1979). Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011), 

cert. denied, 132 S. Ct. 1763 (2012). We examine all the evidence in the light most favorable to 
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the verdict and determine whether any rational trier of fact could have found the essential 

elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Adames, 353 

S.W.3d at 860. This standard recognizes “the responsibility of the trier of fact fairly to resolve 

conflicts in the testimony, to weight the evidence, and to draw reasonable inferences from basic 

facts to ultimate facts.” Jackson, 443 U.S. at 319; see also Adames, 353 S.W.3d at 860. The 

jury, as the fact finder, is entitled to judge the credibility of the witnesses, and can choose to 

believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 

S.W.2d 459, 461 (Tex. Crim. App. 1991). We defer to the jury’s determinations of witness 

credibility, and may not substitute our judgment for that of the fact finder. Brooks v. State, 323 

S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); King v. State, 29 S.W.3d 556, 562 (Tex. 

Crim. App. 2000) (in conducting legal sufficiency analysis, appellate court “may not re-weigh 

the evidence and substitute our judgment for that of the jury”).

Barrera’s contention regarding the sufficiency of the evidence rests on the assumption 

that the jury’s negative finding with regard to the charge of sexual assault by intentionally and 

knowingly causing the contact and penetration of S.G.’s sexual organ by Barrera’s sexual organ

must, necessarily, influence the jury’s finding on the charge of sexual assault by penetration of 

S.G.’s mouth by Barrera’s sexual organ. But Barrera’s argument does not affect our sufficiency 

analysis regarding whether the evidence supports his conviction. Barrera’s argument, while 

couched in terms of the sufficiency of the evidence, is more akin to a complaint that inconsistent 

verdicts are invalid. See Moranza v. State, 913 S.W.2d 718, 724 (Tex. App.—Waco 1995, pet. 

ref’d). “It is axiomatic that a jury verdict need not be consistent if one is talking about a multicount verdict, because in that instance each count of the charging instrument is considered 

separately, and a guilty verdict upon any count may stand, provided that it is supported by the 

evidence.” Whittington v. State, 781 S.W.2d 338, 340 (Tex. App.—Houston [14th Dist.] 1989, 
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pet. ref’d) (citing United States v. Varkonyi, 611 F.2d 84, 86 (5th Cir. 1980)). “Where a multicount verdict appears inconsistent, the appellate inquiry is limited to a determination of whether 

the evidence is legally sufficient to support the counts on which a conviction is returned. What 

the jury did with the remaining counts is immaterial.” Ward v. State, 938 S.W.2d 525, 528 (Tex. 

App.—Texarkana 1997, pet. ref’d) (quoting Ruiz v. State, 641 S.W.2d 364, 366 (Tex. App.—

Corpus Christi 1982, no pet.)); see also Moranza, 913 S.W.2d at 724 (“[I]nstead of summarily 

finding the evidence legally insufficient to support the jury’s verdict of guilt, the appellate court 

should examine the legal sufficiency of the evidence to support the counts on which a conviction 

was rendered.”).

1

 Therefore, we review the evidence in the light most favorable to the jury’s 

verdict of guilt to determine whether a rational trier of fact could have found the essential 

elements of the offense beyond a reasonable doubt.

In this case, the State had to prove beyond a reasonable doubt that Barrera intentionally 

and knowingly caused the penetration of the mouth of S.G., a child younger than seventeen years 

of age and not his spouse, by his sexual organ. See TEX. PENAL CODE ANN. § 22.011(a)(2)(B) 

(West 2011). A child is a person younger than 17 years of age who is not the spouse of the actor. 

Id. § 22.011(c)(1) (West 2008) (current version at TEX. PENAL CODE ANN. § 22.011(c)(1) (West 

2011)).

2

 The testimony of the child victim alone is sufficient to support a conviction for sexual 

assault. TEX. CODE CRIM. PROC. ANN. art. 38.07(a), (b)(1) (West Supp. 2012); Garcia v. State, 

563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978).

 1 “Every act of sexual assault alleged in a separate count of an indictment is a separate criminal offense, not merely a different method of 

committing the same offense, for which the defendant may be convicted.” Tear v. State, 74 S.W.3d 555, 562 (Tex. App.—Dallas 2002, pet. 

ref’d). In the case at bar, the trial court specifically instructed the jury there were two separate charges and the verdict with regard to one of the 

charges did not necessarily dictate what the verdict should be with regard to the other charge, and that there could be different findings. Further, 

the trial court submitted two separate verdict forms to the jury.

2 The definition of “child” in penal code section 22.011(c)(1) was amended, effective September 1, 2009, to delete the phrase “not the 

spouse of the actor,” but the prior definition applies to offenses committed before that date. See Act of May 18, 2009, 81st Leg., R.S., ch. 260, § 

3, 2009 Tex. Gen. Laws 710, 711. Here, it was charged that the offense occurred on or about June 1, 2006.
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S.G. testified at trial that she was born June 24, 1991. Barrera, her adoptive father, began 

sexually assaulting her around the age of thirteen when her mother, Lourdes Barrera, moved out 

of the house after filing for divorce from Barrera. The abuse began by Barrera rubbing and 

touching S.G. outside of and underneath her clothing. The abuse progressed to a point where 

Barrera performed oral sex on S.G. and engaged in vaginal sex with S.G. in Barrera’s bedroom at 

his house. Barrera referred to the times he performed oral sex on S.G., S.G. performed oral sex 

on Barrera, or Barrera and S.G. engaged in vaginal sex as “sessions.” At least once a week when 

S.G. was in the seventh and eighth grades, Barrera made S.G. perform oral sex on him at his 

workplace. He placed his penis in her mouth, sometimes pushing her head onto his penis.

In 2003 or 2004, S.G. told her therapist, Lincoya Young, about Barrera rubbing and 

touching her. At that point in time, the abuse had not progressed beyond the rubbing and 

touching. S.G. later recanted what she had told Young because Barrera told S.G. that her 

younger sister would not have a father and the family would be financially impacted by the abuse 

she had reported. S.G. made a second outcry while in juvenile detention in 2007. Child 

Protective Services (CPS) conducted an interview of S.G. following her second outcry. After 

S.G.’s release from juvenile detention in June 2007, she was living with Lourdes. Detective 

Alan Frizzell of the Grand Prairie Police Department obtained a recording of a phone 

conversation and an in-person conversation between S.G. and Barrera. With the permission of 

Lourdes and under the supervision of Frizzell, S.G. phoned Barrera under the pretext of wanting 

to talk with Barrera about potentially moving back to his home. Barrera did not want to talk on 

the phone and came to meet S.G. outside Lourdes’s apartment. Barrera sat in his vehicle and 

spoke to S.G., who stood beside the vehicle. Frizzell was monitoring the conversation from a 

vantage point nearby by means of a recording device secretly worn by S.G. S.G. testified that 

for most of the conversation, Barrera did not want to speak aloud and, instead, wrote his 
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communications to S.G. on paper and erased them after she had read them. Barrera was arrested 

on the sexual assault charges in September 2007.

Young, a licensed professional counselor, testified she began seeing S.G. in therapy in 

June 2004. S.G. told Young her stepfather, Barrera, had touched her private area, massaged her 

legs, and had kissed her several times. Young generated a report regarding what S.G. had told 

her and provided the report to CPS. CPS did not find “a reason to believe” the accusations S.G. 

had made against Barrera and did not choose to remove the children then in Barrera’s custody. 

Based on the physical abuse of S.G. by Barrera, evidenced by a black eye and Barrera’s 

admitting he had hit S.G. in the eye, S.G.’s stating she was afraid of Barrera, and S.G.’s 

statements Barrera had touched her inappropriately and kissed her several times, Young did not 

agree with CPS failing to find a reason to believe S.G.’s accusations.

Frizzell was contacted by CPS following an August 1, 2007 forensic interview of S.G. 

Frizzell spoke with Erin Price of the district attorney’s office, who was responsible for intake of 

child abuse cases, to determine if there was enough evidence to go forward with a case against 

Barrera. Frizzell then obtained permission from Lourdes to set up a recorded telephone call 

between S.G. and Barrera. S.G. placed the phone call to Barrera under the pretext that she

wanted to discuss potentially moving back into Barrera’s home. Barrera indicated he did not 

want to talk on the phone and would come to Lourdes’s apartment to speak with S.G. S.G. was 

wearing a hidden recording device, and Frizzell recorded the conversation between S.G. and 

Barrera in the parking lot of Lourdes’s apartment. Frizzell testified that the dates of the offenses 

charged in cause numbers F07-30801-P and F07-30786-P were dates between S.G.’s fourteen 

and sixteenth birthdays, because in the forensic interview with CPS, S.G. described incidents of 

sexual abuse that occurred when she was fourteen and fifteen years of age.
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The jury heard the recordings of the phone conversation and the in-person conversation 

between S.G. and Barrera. On the recording of the in-person conversation, Barrera stated to S.G. 

that if she came back to live with him, “everything would be totally different.” S.G. responded 

that Barrera had said that before and “it started all over again.” S.G. said she would tell Barrera 

“no,” and he would be angry and hold it against her. Barrera stated he had “misread,” he felt 

bad, and it was not going to happen. S.G. expressed her concern to Barrera that the same thing 

would happen to her younger sister. She also indicated that she could not “say anything about it 

to anyone because you think you are going to get in trouble.” Barrera stated S.G. had “all the 

right in the world to be upset,” and that it was never S.G.’s fault.

We conclude the evidence is legally sufficient to support Barrera’s conviction on the 

count alleging penetration of S.G.’s mouth by Barrera’s sexual organ when she was younger than 

seventeen years of age. Based on S.G.’s testimony alone, there was sufficient evidence to 

support the jury’s finding of guilt. In addition, the jury heard the testimony of counselor Young 

regarding the sexual abuse, and the recorded face-to-face conversation between S.G. and Barrera. 

The jury could infer Barrera did not audibly respond during most of the in-person recorded

conversation, choosing instead to write his communications, to avoid making incriminating 

statements if the conversation was being monitored or recorded. Further, the jury could infer the 

statements Barrera made in that conversation referred to the sexual abuse of S.G. As the fact 

finder, the jury was the exclusive judge of the credibility of the witnesses and the weight to be 

given their testimony, and was free to accept or reject all or any part of their testimony. We 

conclude a rational jury could have found the essential elements of the offense beyond a 

reasonable doubt. We resolve Barrera’s first point of error against him.
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Court Costs

In his second point of error, Barrera requests we reform the trial court’s judgment to 

delete the requirement that he pay court costs because the clerk’s record does not contain a bill of 

costs. If a criminal action is appealed, “an officer of the court shall certify and sign a bill of costs 

stating the costs that have accrued and send the bill of costs to the court to which the action or 

proceeding is . . . appealed.” TEX. CODE CRIM. PROC. ANN. art. 103.006 (West. 2006). Costs 

may not be collected from the person charged with the costs until a written bill, containing the 

items of cost, is produced and signed by the officer who charged the cost or the officer entitled to 

receive payment for the cost. Id. art. 103.001.

The clerk’s record in this case did not contain a copy of the bill of costs. In light of 

Barrera’s specific complaint that the clerk’s record did not contain a bill of costs, we ordered the 

Dallas County District Clerk to file a supplemental clerk’s record containing the certified bill of 

costs associated with this case, and the clerk did so. See TEX. R. APP. P. 34.5(c)(1) (rules of 

appellate procedure allow supplementation of clerk’s record if relevant item has been omitted). 

Barrera’s complaint that the evidence is insufficient to support the imposition of costs because 

the clerk’s record did not contain a bill of costs is now moot. See Coronel v. State, No. 05-12-

00493-CR, 2013 WL 3874446, at *4 (Tex. App.—Dallas July 29, 2013, no pet. h.) (citing 

Franklin v. State, 402 S.W.3d 894, 895 (Tex. App.—Dallas 2013, no pet.)). We resolve 

Barrera’s second point of error against him.

In response to the Court’s order requiring supplementation of the record, Barrera filed a 

motion in which he objects that the bill of costs in the supplemental clerk’s record is not a 

“proper bill of costs” and the bill of costs was not filed in the trial court or brought to the trial 

court’s attention before costs were entered in the judgment. 
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With respect to his first objection, Barrera argues the bill of costs in the record is not a

“proper bill of costs” because it consists of “unsigned, unsworn computer printouts.” The code 

of criminal procedure requires only that a bill of cost be certified and signed “by the officer who 

charged the cost or the officer who is entitled to receive payment for the cost,” “stating the costs 

that have accrued” if the cause is appealed. TEX. CODE CRIM. PROC. ANN. art. 103.001, .006. 

Here, the district clerk provided a “Bill of Costs Certification” containing the costs that have 

accrued to date in Barrera’s case; it is certified and signed by the deputy district clerk. We 

conclude the supplemental record filed by the clerk meets the mandate of the code of criminal 

procedure. See Coronel, 2013 WL 3874446, at *4.

Barrera also complains that there is no indication the bill of costs was filed in the trial 

court or brought to the trial court’s attention before costs were entered in the judgment. 

However, there is no requirement that a bill of costs be presented to the trial court at any time 

before judgment. Id. at *5. We deny Barrera’s motion objecting to the supplemental record.

Finally, we note that in his original brief and his objection to the bill of costs, Barrera

does not challenge the propriety or legality of the specific costs assessed; therefore, we do not 

address these matters.

Modifications of Judgment

In his third and fourth points of error, Barrera requests the judgment be reformed to 

accurately reflect the statute he was found to have violated and the attorneys who represented the 

State at trial. This Court has the power to modify an incorrect judgment to make the record 

speak the truth when we have the necessary information before us to do so. TEX. R. APP.

P.43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Asberry v. State, 813 

S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d).
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The judgment recites that the statute Barrera was found to have violated was Texas Penal 

Code § 22.01. See TEX. PENAL CODE ANN. § 22.01 (West 2011) (assault statute). However, the 

record is clear that Barrera was tried and convicted of sexual assault, and the statute addressing 

that offense is Texas Penal Code § 22.011. See TEX. PENAL CODE ANN. § 22.011 (West 2011) 

(sexual assault statute).

The judgment lists the attorney for the State as M. Shughart. The reporter’s record, 

however, indicates Sherre Sweet and Stephanie Martin represented the State.

We resolve Barrera’s third and fourth points of error in his favor. Accordingly, we 

reform the judgment to reflect the statute Barrera was found to have violated is section 22.011 of 

the penal code, and the attorneys of record for the State were Sherre Sweet and Stephanie Martin.

Conclusion

As modified, we affirm the trial court’s judgment.

Do Not Publish

TEX. R. APP. P. 47

120715F.U05

/Robert M. Fillmore/

ROBERT M. FILLMORE

JUSTICE
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Court of 

S

Appeals

Fifth District of Texas at Dallas

JUDGMENT

ADRIAN V. BARRERA, Appellant

No. 05-12-00715-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 203rd Judicial District 

Court, Dallas County, Texas,

Trial Court Cause No. F07-30801-P.

Opinion delivered by Justice Fillmore, 

Justices Bridges and Lewis participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED

as follows:

The judgment is modified to reflect the statute Adrian Barrera was found to have 

violated is Texas Penal Code section 22.011, and the attorneys for the State of 

Texas were Sherre Sweet and Stephanie Martin.

As REFORMED, the judgment is AFFIRMED.

Judgment entered this 20th day of September, 2013.

/Robert M. Fillmore/

ROBERT M. FILLMORE

JUSTICE