### IN THE TENTH COURT OF APPEALS
No. 10
- 07
- 00105
- CR
BRUNSHAE STEADMAN , Appellant
v. THE STATE OF TEXAS , Appellee

From the 52nd District Court Coryell County, Texas Trial Court No
. 18,512

OPINION ON REMAND
On original submission, the Court, with Chief Justice Gray dissenting, reversed
Brunshea Steadman’s conviction for aggravated assault due to factual insufficiency. See
Steadman v. State , 262 S.W.3d 401 (Tex. App.

— Waco 2008, pet. granted). The Court of Criminal Appeals reversed and remande d , holding that we “failed in several respects to conduct a proper factual sufficiency review

. ” See Steadman v. State , 280 S.W.3d 242 , 250 (Tex. Crim. App. 2009). The sole issue on remand is whether the evidence isSteadman v. State Page 2

factually sufficient to support Steadma n’s conviction for aggravated assault by his sexual organ. We affirm.
STANDARD OF REVIEW Under factual sufficiency review, we ask whether a neutral review of all the evidence demonstrates that the proof of guilt is so weak or that conflicting evidence is so strong as to render the jury’s verdict clearly wrong and manifestly unjust. Watson v.
State , 204 S.W.3d 404, 414

- 15 (Tex. Crim. App. 2006) ; Johnson v. State , 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) . We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson , 23 S.W.3d at 7 . We do not indulge in
inferences or confine our view to evi dence favoring one side. Rather, we look at all the evidence on both sides and then make a predominantly intuitive judgment. Id.
ANALYSIS The State may prove penetration by circumstantial evidence. See Villalon v. State , 791 S.W.2d 130, 133 (Tex. Crim. App. 1990)

. The State need not establish actual penetration of the vaginal opening in order to establish aggravated sexual assault by a defendant’s sexual organ: [M] ere contact with the outside of an object does not amount to a penetration of it. But pushing aside and reaching beneath a natural fold of skin into an area of the body not usually exposed to view, even in nakedness, is a significant intrusion beyond mere external contact.Steadman v. State Page 3

Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992)

. Evidence of the slightest penetration is sufficient to uphold a conviction, so long as it has been shown beyond a
reasonable doubt. See Luna v. State , 515 S.W.2d 271, 273 (Tex. Crim. App. 1974)

. L.N. told her grandmother t hat Steadman “laid down on top of me and played with me,” touched her “tutu,” meaning her vaginal area, and touched her with his penis “[d]own in her stride,” also meaning her vaginal area. L.N. was suffering from a green discharge and had previously comp lained of her “tutu” hurting and bleeding.
Nurse Annette Wendeborn testified that g reenish discharge in a child L.N .’s age
is uncommon and suggests a sexually transmitted disease

. She opined that the infection was caused by some kind of sexual contact. Dr. Barry Phillips testified that L.N.’s exam revealed a green watery discharge, “mild reddish irritation,” and no “evidence of trauma.” He does not “routinely” see discharge from a child who has never had a menstrual cycle or sexual intercourse. L.N. c ould have had any number o f bacterial
infections and the irritation could have been caused by using the restroom, bathing, scratching , or wearing old underwear

. L.N. tested positive for gonorrhea.
Steadman tested positive for both gonorrhea and chlamydia. He told Deputy Armando Paniagua that he touched L.N. by rubbing her sexual organ with his finger and penetrated her with his finger under her clothing. In his statement, Steadman wrote, “I was playing with my self and got cum on my finger, I was drunk a t the time I touch [L.N.] with my hand, I never did do anything other than that.” He used gestures to show Paniagua what he did to L.N. After writing his statement, Steadman denied doing anything to L .N. and stopped the interview.Steadman v. State Page 4

L.N. told sexual assaul t n urse examiner Deborah Kleypas that Steadman put his penis on her bottom, “tutu,” and “pee pee.” During L.N.’s exam, Kleypas and Dr.
Pamela Greene observed v

- shaped notches in L.N.’s hymen and posterior fourchette. Kleypas testified that these findings are not “definitive proof of sexual abuse,” but
could have resulted from abuse and were consistent with the abuse that L.N. described. Kleypass testified that a nything passing beyond the labia majora constitutes penetration of the female sexual organ , su ch as “rubbing up and down;” “ it doesn’t necessarily have to go in the vagina to be penetration.” Kleypas and Greene explained that penetration of a child’s sexual organ by the male sexual organ is difficult. Greene explained that a child’s vaginal openi ng is so tiny that the male penis could not enter without “ripping it from the vagina all the way to the rectum.” Kleypas testified that in
p robably ninety percent of sexually abused children , “something has passed the labia majora

. ” The percentage is m u ch less with regard to the frequency of vaginal penetration

. Eighty

- five to ninety percent of the time there is no injury to the labia majora or labia minora . Greene testified that seventy

- five percent of exams are normal.
Greene and Kleypas testified th at g onorrhea is transmitted by genital to genital

contact or mucus membrane to mucus membrane . Kleypas explained that a ny discharge from the penis that contacts the mucus membranes past the labia majora is
sufficient to transmit the infection

. Greene tes tified that the infection can be transmitted by rubbing on the labia minora or contacting the child’s genitals. Dr. Robert Fader testified that gonorrhea can be transmitted to a child by rubbing between the labia majora . He explained that, unlike an adul t female, a child’s entire genital urinary tr actSteadman v. State Page 5

is susceptible to infection because of differences in the inner tissue of the female sexual
organ. He, Greene, and Kleypas explained that, unlike adults, children usually show symptoms of the infection. Gr eene further explained that a person may have both chlamydia and gonorrhea , but transmit only one infection. Greene testified that it may be p ossible to transmit gonorrhea by rubbing the child’s genitals with a finger on which semen is present, but would p robably have to be a “large inoculum.” She stated that gonorrhea has not been found to be transmittable by object, such as a towel, but one study found that it was transmitted to a child who
swallowed an agar medium on which the infection was growing. Fa der testified that
the infection cannot live outside the body very long ; thus, transmission by finger is possible, but the sample would need to be in a moist state when transferred

. He
testified that c atching the infection by sitting on a toilet is a remo te possibility.
L.N.’s mother admitted having gonorrhea while pregnant with L.N. Greene testified that a baby could contract gonorrhea during child birth, but the infection would develop in the child’s eyes and would develop within a few weeks of delivery

. Fader testified that it is h ighly unlikely that gonorrhea could be contracted at birth and develop four years later

. Kleypas, Greene, and L.N.’s primary care physician Dr. Darren Hamm each testified that gonorrhea in a child is indicative of sexual abu se. Specifically, Greene testified that gonorrhea in a four

- year - old child means sexual
abuse. As the Court of Criminal Appeals noted in Steadman , Vernon accepted the State’s position that “tactile contact beneath the fold of complainant’ s external genita liaSteadman v. State Page 6

amounts to penetration within the meaning of the Aggravated Sexual Assault statute, since vaginal penetration is not required, but only penetration of the ‘female sexual organ.’” Vernon , 841 S.W.2d at 409 ; Steadman , 280 S.W.3d at 247

- 48. In this case , L.N. accused Steadman of touching her female sexual organ, L.N. suffered from a sexually transmitted disease from which Steadman also suffered, and medical testimony established that penetration constitutes anything pa ssing beyond the labia majora and
th at gonorrhea may be transmitted by this means without penetrating the vaginal opening. Viewing the evidence in a neutral light, a reasonable jury could conclude that the contact between Steadman’s sexual organ and L.N.’s sexual organ w as “ more
intrusive t han contact with her outer vaginal lips.” Vernon, 841 S.W.2d at 409

. T he proof of guilt is not so weak nor the conflicting evidence so strong as to render the jury’s verdict clearly wrong or manifestly unjust. See Watson , 204 S.W.3d at 414

- 15 ; see also Johnson , 23 S.W.3d at 11

. Because the evidence is factually sufficient to support Steadman’s conviction, we overrule his sole issue on remand and affirm the judgment.

FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna , and Justice Davis Affirmed Opinion delivered and filed December 16, 2009 Do not publish [CR PM ]