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 remanded, 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 is 
Steadman v. State Page 2

factually sufficient to support Steadman’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 evidence 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 that 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 complained of her “tutu” hurting and bleeding. 

Nurse Annette Wendeborn testified that greenish 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. could have had any number of 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 at 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 assault nurse 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 anything passing beyond the labia majora constitutes 

penetration of the female sexual organ, such 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 opening 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 

probably ninety percent of sexually abused children, “something has passed the labia 

majora.” The percentage is much 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 that gonorrhea is transmitted by genital to genital 

contact or mucus membrane to mucus membrane. Kleypas explained that any 

discharge from the penis that contacts the mucus membranes past the labia majora is

sufficient to transmit the infection. Greene testified 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 adult female, a child’s entire genital urinary tract 
Steadman 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. Greene further explained that a person may have both 

chlamydia and gonorrhea, but transmit only one infection.

Greene testified that it may be possible to transmit gonorrhea by rubbing the 

child’s genitals with a finger on which semen is present, but would probably 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. Fader 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 catching the infection by sitting on a toilet is a remote 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 highly 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 abuse. 

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 genitalia 
Steadman 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 passing beyond the labia majora and 

that 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 was “more 

intrusive than contact with her outer vaginal lips.” Vernon, 841 S.W.2d at 409. The 

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

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