MEMORANDUM OPINION

No. 04-09-00456-CR

Ralph OROZCO Jr.,

Appellant

v.

The STATE of Texas,

Appellee

From the 186th Judicial District Court, Bexar County, Texas

Trial Court No. 2007-CR-6783

Honorable Ron Rangel, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Catherine Stone, Chief Justice

Karen Angelini, Justice

Marialyn Barnard, Justice

Delivered and Filed: September 29, 2010

AFFIRMED

Appellant Ralph Orozco Jr. was indicted on three counts of aggravated sexual assault of a 

child, and one count of indecency with a child by sexual contact. A jury found Orozco guilty of 

one count of aggravated sexual assault of a child and one count of indecency with a child. After 

Orozco pled true to two felony enhancements, the trial court sentenced him to seventy years 

confinement in the Texas Department of Criminal Justice–Institutional Division. Orozco 

appeals, contending in eight issues that: (1) he was denied a unanimous verdict, (2) he was 
04-09-00456-CR

- 2 -

denied his right to a fair and impartial jury, (3) the trial court erred in denying his motion for new 

trial based on jury misconduct, and (4) the evidence was factually insufficient to support the 

verdict. We affirm the trial court’s judgment. 

BACKGROUND

Orozco and Eric T. met when they attended school together. Eric testified he began 

giving Orozco a ride home, and eventually invited Orozco and his family to his house. It was 

then Orozco met Eric’s children, including ten-year-old complainant, E.T. In June 2006, after 

finishing some exams, Eric again agreed to give Orozco a ride home, but according to Eric, 

Orozco asked to be dropped off at the home of a woman. However, later that evening Orozco 

called Eric and asked to be picked up. Eric testified that when he picked up Orozco, Orozco 

asked if he could spend the night at Eric’s house; Eric agreed. 

When the men arrived at Eric’s house, they drank beer and watched television. Eric 

stated that his daughters, E.T., and her two sisters, were asleep downstairs on a sleeper sofa in 

front of the big screen television. Eric said he went to bed around 12:00 a.m., but before he went 

to bed, he either (1) took Orozco upstairs and showed him a bedroom where he should sleep, or

(2) pointed upstairs and told Orozco there was a bedroom upstairs where he should sleep. Eric 

testified he made it clear Orozco was to sleep upstairs. According to Eric, Orozco said, “I’m 

going up there in five minutes.” When Eric went to bed, Orozco was downstairs with the 

children. 

E.T. testified Orozco did not go upstairs–at least not immediately and not alone. E.T. 

stated that Orozco woke her up around 4:00 a.m. when he slammed the sliding glass door. E.T. 

said she knew the time because she could see the clock on the digital video recorder. E.T. 

testified that when he came into the room, Orozco asked her if she wanted to go upstairs. Even 
04-09-00456-CR

- 3 -

though she said “no,” Orozco picked her up and carried her, “kind of like . . . carrying a baby,” 

upstairs to the guest room and put her down on the bed. According to E.T., Orozco told her to 

look at the window, and while she was looking at the window he “started taking off his clothes.” 

E.T. said she could tell he was taking off his clothes by the sounds he was making. When 

Orozco finished, he asked E.T. if she was “going to share the covers with [him].” E.T. said “no,” 

but he removed the blanket she was wrapped in and put her under the bed covers. E.T. testified 

that Orozco then got on top of her, grabbed her hand, and “made [her] touch his middle part,” 

which she described as the part used to go to the restroom. When asked by the prosecutor what it 

felt like, E.T. said it was “wet.” She also said that when she tried to remove her hand, he would 

put it back. At this point, E.T. tried to leave, but he would not let her go. E.T. stated Orozco 

then started touching her “private part,” the part she uses to go to the restroom. She testified 

Orozco touched her “private part” with his “finger and his middle part.” E.T. specifically stated 

Orozco put his fingers inside of her. E.T. also testified that Orozco turned her over and “touched 

[her] bottom” and put his fingers and “middle part” in her bottom. E.T. said it hurt when Orozco 

put his middle part in her bottom and her middle part. 

E.T. told the jury she tried to scream, but Orozco covered her mouth. E.T.’s parents, who 

were asleep in their bedroom approximately fifteen feet from the guestroom, heard nothing. E.T. 

testified Orozco threatened her, telling her that if she told anyone he would find her and try to 

kill her. Orozco then took E.T. back downstairs. E.T. stated that when she woke up, she went to 

summer school like she always did, but she felt “guilty” and “didn’t want to talk” because of 

what Orozco had done to her. Eric testified E.T. quit summer school that day. Three months 
04-09-00456-CR

- 4 -

later, E.T. told her mother what happened.1

Eric testified that the next morning he woke up around 5:30 a.m. and found appellant 

outside. According to Eric, Orozco “had urine all over himself and smelled really awful.” Eric 

discovered that after Eric went to bed, Orozco continued to drink, finishing approximately a case 

and a half of Eric’s beer. Orozco claimed he was out in the backyard looking at the stars, and 

could not make it to the restroom in time, which Eric found odd because the restroom was in 

close proximity to the yard. Eric claimed he later discovered a red blood stain in the guest room. 

After his conversation with Orozco, Eric woke his daughters and he and Orozco took E.T. to 

summer school. Thereafter, Eric took Orozco home. Eric testified the last time he saw Orozco 

was in August 2006 when Orozco stopped by Eric’s house. Eric told the jury that when Orozco 

arrived, E.T. asked her father to “get him out of here and take him away.” 

 She stated she waited because she was “scared [her 

mother] would hate [her],” and that Orozco would kill her. 

J.T., Eric’s niece, was called to testify by Orozco. J.T. testified she met Orozco only 

once, and that was when she was with Eric on an occasion when he picked Orozco up at WalMart. Eric denied this, stating J.T. met Orozco when he stopped by the house one evening 

before the assault. J.T. stated she slept with E.T. and her sisters whenever she spent the night, 

and the night Eric picked Orozco up at Wal-Mart, Orozco did not spend the night at Eric’s house; 

rather, Eric took Orozco home. Based on J.T.’s testimony, Orozco contends Eric’s testimony is 

“disproved” and creates doubt with regard to the assault on E.T. However, it appears from

reading J.T.’s entire testimony that she was not testifying about events that happened the night 

E.T. was assaulted, but some other night when she spent the night with her cousins and Orozco 

was not present. J.T. admitted that the summer E.T. was assaulted, she did not see E.T. at all 

 1

After E.T.’s outcry, her sister, C.F., also alleged she was assaulted by Orozco on the same night. It is undisputed 

that E.T. and C.F. were sleeping together on the sleeper sofa downstairs the night E.T. claimed she was assaulted.
04-09-00456-CR

- 5 -

because J.T. was grounded. Moreover, she stated that she did not believe E.T. lied about the 

assault. 

After E.T.’s outcry to her mother, E.T. was taken to Child Safe. E.T. was ultimately 

examined by Betty Mercer, a sexual assault nurse examiner (SANE), who worked in the Christus 

Santa Rosa Children’s Hospital emergency room. The exam took place on September 28, 2006. 

According to Mercer, E.T. gave an account of the assault. This account is consistent with E.T.’s 

trial testimony. Mercer testified E.T.’s genital exam was normal, and no physical trauma was 

apparent. However, Mercer stated theses results were “consistent with the history E.T. gave.” 

Mercer explained that any physical trauma from an assault in June “would certainly have been 

healed” by the time of her exam. Dr. Nancy Kellog confirmed that it is not unusual for abused 

children to show no signs of physical trauma during an exam. Mercer admitted, however, that 

the lack of physical trauma could also mean no assault occurred. 

The jury ultimately convicted Orozco of two of the four counts alleged in the indictment: 

(1) count one, aggravated sexual assault of a child by penetrating E.T.’s sexual organ with his 

finger; and (2) count four, indecency with a child by sexual contact by causing E.T. to engage in 

sexual contact, i.e., by touching any part of E.T.’s body with some part of his genitals. The jury 

found Orozco not guilty on counts two and three. After Orozco pled true to two enhancement 

paragraphs, the trial court sentenced him to seventy years confinement. Orozco filed a motion 

for new trial, which was denied, and then perfected this appeal. 

ANALYSIS

Orozco raises eight issues on appeal. However, he argues those issues in three groups, 

contending he was denied a unanimous verdict, the verdict was reached as a result of juror 

misconduct, and the evidence was factually insufficient to support the verdict. 
04-09-00456-CR

- 6 -

Non-unanimous Verdict

In his first four issues, Orozco contends his rights secured by article 36.29(a) of the Texas

Code of Criminal Procedure, article V, section 13 of the Texas Constitution, and the Fifth, Sixth, 

and Fourteenth Amendments of the United States Constitution were violated because he was 

convicted on less than a unanimous verdict. He further contends this caused him egregious 

harm. 

Under the Texas Constitution, jury unanimity is required in felony cases, and under the 

Texas Code of Criminal Procedure, jury unanimity is required in all criminal cases. Ngo v. State, 

175 S.W.3d 738, 745 (Tex. Crim. App. 2005); see TEX. CONST. art. V, § 13; TEX. CODE CRIM.

PROC. arts. 36.29(a), 37.02-.03 (West 2006 & Supp. 2009). “Unanimity in this context means 

that each and every juror agrees that the defendant committed the same, single, specific criminal 

act.” Ngo, 175 S.W.3d at 745; see Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007) 

(holding unanimity ensures all jurors reach consensus on same act for conviction). 

Although guised generally as a challenge to a lack of unanimity, Orozco actually argues 

the trial court erred in failing to instruct the jury that in order to find Orozco guilty on any one 

count, it had to unanimously agree to his guilt on that count. More specifically, Orozco contends 

the trial court erred, and he suffered egregious harm, because the jury charge lacked a general 

instruction on unanimity, and lacked separate unanimity instructions in each application 

paragraph. Orozco asserts the jury charge “misled the jury into believing that only its ultimate 

verdict of guilty need be unanimous.” According to Orozco, without the unanimity instructions, 

“some jurors could have believed that [Orozco] was guilty of some counts and some jurors could 

have believed he was guilty of other [sic], and then simply agreed to find him guilty of both 

counts 1 and 4 and not of counts 2 and 3.” 
04-09-00456-CR

- 7 -

In support of his argument, Orozco relies upon two decisions from the court of criminal 

appeals in which the court determined jury charges contained error because they permitted the 

jury to find a defendant guilty on less than a unanimous verdict. See Pizzo, 235 S.W.3d at 719; 

Ngo, 175 S.W.3d at 745, 750. However, as the State points out, the cases relied upon by Orozco 

to support his complaint are distinguishable. The cases relied upon by Orozco were cases in 

which the jury charges contained application paragraphs that submitted distinctive offenses 

disjunctively. See id. 

Here, the jury was advised within the general portion of the charge that it was to reach a 

unanimous verdict: “After you have reached a unanimous verdict the Foreman will certify 

thereto by filling in the appropriate forms attached to this charge and signing his or her name as 

Foreman.” This is similar to the general instruction the court found insufficient in Pizzo and 

Ngo. However, unlike Pizzo and Ngo, the jury charge in this case set out separate and distinct 

application paragraphs, on separate pages, for each count of the indictment, mimicking the four 

counts alleged in the indictment. Unlike Pizzo and Ngo, the applications paragraphs were not 

submitted disjunctively, i.e., they were not structured so as to permit the jury to find a general, 

single verdict of guilt if they believed Orozco was guilty of one count but not another. Nor did it 

authorize a general verdict of guilt if some jurors believed Orozco was guilty of one count, and 

others believed he was guilty of some other count. Rather, as structured, the jury charge required 

the jury to deliberate and respond “guilty” or “not guilty” as to each specific offense for which 

Orozco was indicted and tried. And, the jury charge contained a separate verdict form for each 

separate and distinct count. On the verdict forms for counts one and four, the foreperson signed 

beneath the “guilty” paragraph, but on the verdict forms for counts two and three, the foreperson 

signed beneath the “not guilty” paragraph. 
04-09-00456-CR

- 8 -

Moreover, after the verdict forms were returned to the court, the trial court asked the jury 

whether the verdict was unanimous, and the foreperson responded, “yes.” The trial court then 

read each verdict out loud and polled the individual jurors as to whether they agreed with the 

verdict in each count. To a person the jurors responded that the verdicts returned were their 

verdicts. 

It is evident that the verdicts in this case were unanimous. However, even if we were to 

agree with Orozco that the trial court erred in failing to provide additional instructions on 

unanimity, we hold Orozco did not suffer egregious harm from such error. 

Orozco admittedly did not object to the absence of individual unanimity instructions in 

the jury charge. In fact, when asked by the trial court if he had any objection to the jury charge, 

Orozco’s counsel responded “no.” When a defendant fails to object to an alleged error with 

regard to an instruction in the jury charge, the record must show he suffered actual, rather than 

merely theoretical, harm from the error, i.e., egregious harm. Ngo, 175 S.W.3d at 750. 

Egregious harm results when the alleged error affects “the very basis of the case,” “deprive[s] the 

defendant of a valuable right,” or “vitally affect[s] a defensive theory.” Id. (quoting Hutch v. 

State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). To determine whether a defendant 

suffered egregious harm, we must look at the entire jury charge, the state of the evidence, 

arguments of counsel, as well as any other relevant information in the record. Ngo, 175 S.W.3d 

at 750 n.48. 

Based on our review of the record, we can find no reason to believe each verdict was 

anything less than unanimous, and therefore we find no egregious harm. As discussed above, the 

jury charge contained a general instruction on unanimity, provided wholly separate application 

paragraphs for each offense, and individual verdict forms for each offense. As for the evidence, 
04-09-00456-CR

- 9 -

Orozco’s strategy was to attempt to show inconsistencies in the testimony of the witnesses so as 

to convince the jury no assault ever took place. However, E.T. was clear in her testimony as to 

the details of the assault, and any inconsistencies were obviously resolved by the jury in favor of 

conviction. That the jury found Orozco guilty on two, rather than four, counts suggests the jury 

closely listened to the evidence and convicted Orozco only on those counts for which there was 

evidence beyond a reasonable doubt. Finally, unlike Ngo, the State in this case did not 

incorrectly advise the jury that it could find Orozco guilty by “mixing and matching” elements 

from separate offenses. See 175 S.W.3d at 750 (prosecutor told venire, and repeated it during 

closing argument, that if three jurors felt defendant stole credit card and used it, but six thought 

defendant merely received it, and three thought defendant presented it, defendant was guilty; 

prosecutor advised “it doesn’t matter which one you think he did. It can be a mix and match, 

whichever one you believe.”). 

Accordingly, we hold Orozco was not convicted on less than a unanimous verdict, and 

even if the trial court erred in failing to instruct the jury as suggested by Orozco, Orozco did not 

establish he suffered egregious harm as a result of such error. We overrule issues one through 

four. 

Jury Misconduct

In his next three issues, Orozco complains about jury misconduct. He first argues rule 

606(b) of the Texas Rules of Evidence violates his due process rights and right to a fair and 

impartial jury under the federal and state constitutions. He further argues the trial court erred in 

denying his motion for new trial because rule 21.3 of the Texas Rules of Appellate Procedure 

requires that a defendant receive a new trial when a verdict is decided in a manner other than a 
04-09-00456-CR

- 10 -

fair expression of the jurors’ opinions, or when a jury engages in misconduct that results in an 

unfair or impartial trial. 

The record reflects the jury retired to deliberate on a Friday. At approximately 3:58 p.m. 

on that Friday, the jury sent out a note signed by the foreperson, stating the jury was “hung.” 

The trial court informed the parties about the note, and advised that it intended to instruct the 

jury to “please continue with your deliberations.” No one objected, and the court so instructed

the jury in writing. A few minutes later, the jury informed the court it had reached a unanimous 

verdict on all counts: guilty on counts one and four, not guilty on counts two and three. After the 

verdict was entered, Orozco’s counsel and the prosecutor spoke to several jurors. According to 

Orozco, specifically his counsel’s affidavit admitted during the hearing on the motion for new 

trial, one or more jurors related that the foreperson did not “think the defendant was guilty but he 

didn’t know if he was innocent.” However, after a female juror told the foreperson God had sent 

the jury to make a decision and it was the jury’s duty to do so, the jury compromised, finding 

Orozco guilty on two counts and not guilty on two counts, which allowed the jurors to be 

released from service. Counsel also stated in her affidavit that a juror, the same one that told the 

foreperson about the jury’s duty, told her the foreperson was gay and this disgusted the juror. 

Orozco tried to introduce an affidavit from a juror in addition to the one prepared by his 

counsel, but the State objected, arguing rule 606(b) did not permit the juror to testify about what 

occurred during deliberations, unless it concerned an outside influence. See TEX. R. EVID.

606(b). The affidavit essentially stated the foreperson “was holding out for a not guilty verdict 

on all counts,” but eventually the jury compromised and reached a verdict on all counts. 

However, it was the juror’s belief that the foreperson did not think Orozco was guilty on any 

count. The trial court denied Orozco’s request to admit the juror’s affidavit. 
04-09-00456-CR

- 11 -

Orozco first argues, in issues five and six, rule 606(b), which prevents jurors from 

testifying “as to any matter or statement occurring during the jury’s deliberations, or to the effect 

of anything on any juror’s mind or emotions or mental processes, as influencing any juror’s 

assent or dissent from the verdict[,]” denied him his right to due process and his right to a fair 

and impartial jury under numerous provisions of the state and federal constitutions. Id.; see U.S.

CONST. amends. V, VI, & XIV; TEX. CONST. art. I, §§ 10, 19. He argues the rule “clos[es] the 

door so tightly to the criminal jury room” that it denies his rights to due process and a fair and 

impartial jury. However, Orozco did not raise such an objection at any time during the hearing 

on the motion for new trial. We can find no place in the record, nor does Orozco cite us to any, 

where he objected that the application of rule 606(b) violated his rights under the state or federal 

constitution. 

“A party is not excused from the procedural requirements for objecting at trial merely 

because an error involves a constitutional right.” Jimenez v. State, 32 S.W.3d 233, 235 (Tex. 

Crim. App. 2000). Texas courts have long held that even constitutional guarantees can be 

waived absent a proper trial objection. Id. (citing Gibson v. State, 516 S.W.2d 406, 409 (Tex. 

Crim. App. 1974)). A specific objection is required unless the constitutional right allegedly 

violated is “waivable only” or “an absolute, systemic requirement.” Saldano v. State, 70 S.W.3d 

873, 889 (Tex. Crim. App. 2002). Very few rights fall into these categories. See id. at 888 

(listing rights that are waivable only as the right to counsel and trial by jury, and the absolute, 

systemic requirements as jurisdiction of the person, subject matter jurisdiction, and penal 

statute’s need for compliance with separation of powers doctrine). The rights asserted by Orozco 

in this case, right to due process and to be tried by a fair and impartial jury, do not fall into either 

category set out in Saldano. Accordingly, a specific objection was required to preserve his 
04-09-00456-CR

- 12 -

complaint for our review. See id. Because no constitutional objection to the application of rule 

606(b) was asserted, there is nothing for us to review. 

Moreover, even if the complaint had been preserved for our review, the Supreme Court 

has held that federal rule 606(b), which is extremely similar to the state rule, does not violate a 

defendant’s right to a fair jury trial. Tanner v. United States, 483 U.S. 107, 126-27 (1987). 

Additionally, several Texas courts of appeals have reached the same conclusion regarding rule 

606(b) of the Texas Rules of Evidence, holding the rule does not violate a defendant’s right to 

due process or his right to a fair and impartial jury. See, e.g., Dunklin v. State, 194 S.W.3d 14, 

19-20 (Tex. App.—Tyler 2006, no pet.); White v. State, 181 S.W.3d 514, 524-26 (Tex. App.—

Texarkana 2005), aff’d, 225 S.W.3d 571 (Tex. Crim. App. 2007); Glover v. State, 110 S.W.3d 

549, 552 (Tex. App.—Waco 2003, pet. ref’d); Richardson v. State, 83 S.W.3d 332, 362 (Tex. 

App.—Corpus Christi 2002, pet. ref’d); Sanders v. State, 1 S.W.3d 885, 888 (Tex. App.—Austin 

1999, no pet.). We agree with the holdings and reasoning of these courts, and hold rule 606(b) 

did not violate Orozco’s right to due process or his right to a fair and impartial jury. We overrule 

issues five and six. 

Orozco also contends the trial court erred in denying his motion for new trial because rule 

21.3 of the Texas Rules of Appellate Procedure compelled the court to grant a new trial. See

TEX. R. APP. P. 21.3. The grant or denial of a motion for new trial is within the discretion of the 

trial court. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). Therefore, in reviewing the 

trial court’s decision on a motion for new trial, we use an abuse of discretion standard. State v. 

Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). We reverse a trial court’s ruling with 

regard to a motion for new trial only when its decision is so clearly wrong as to lie outside the

zone of reasonable disagreement. Id. at 695 n.4. 
04-09-00456-CR

- 13 -

Rule 21.3 states a defendant must be granted a new trial “when the verdict has been 

decided by lot or in any manner other than a fair expression of the jurors’ opinion.” TEX. R. APP.

P. 21.3. Orozco contends that even if we do not consider the juror’s affidavit because of the 

application of rule 606(b), the affidavit and testimony of his counsel at the motion for new trial 

hearing is sufficient to show the jurors “came to a compromised verdict” that “was not a fair 

expression of the jurors’ opinions,” requiring a new trial under rule 21.3. We disagree.

Orozco seems to suggest that rule 606(b) and rule 21.3 operate independently. This is 

incorrect. Rules 606(b) and 21.3 work together to define jury misconduct and how a defendant 

may prove the existence of such conduct. Hines v. State, 3 S.W.3d 618, 622 (Tex. App.—

Texarkana 1999, pet. ref’d). Rule 606(b) defines what evidence is admissible in proving jury 

misconduct, i.e., evidence of outside influences improperly brought to bear on a juror, TEX. R.

EVID. 606(b), while rule 21.3 limits that permissible evidence to that which is relevant to the 

indictment or the verdict. TEX. R. APP. P. 21.3. Thus, unless a defendant has evidence that is 

admissible under rule 606(b), rule 21.3 never comes into play, and therefore would not compel 

the trial court to grant a new trial. See Hines, 3 S.W.3d at 622. 

Here, the evidence relied upon by Orozco to support his assertion that he was entitled to a 

new trial, other than the clearly inadmissible testimony of the juror, was the affidavit and 

testimony of his attorney. However, that evidence, though admitted by the trial court at the 

hearing, is nothing more than the attorney’s restatement of statements by jurors as to what went 

on during deliberations. Neither the attorney’s affidavit nor her testimony provides any evidence 

of an outside influence that resulted in an improper verdict. Because such evidence was clearly 

improper under rule 606(b), it did not compel the trial court to grant a new trial under rule 21.3. 

We therefore overrule Orozco’s seventh issue. 
04-09-00456-CR

- 14 -

Factual Sufficiency

A verdict must be supported by factually sufficient evidence. Laster v. State, 275 S.W.3d 

512, 518 (Tex. Crim. App. 2009). However, unlike a legal sufficiency review, which is a federal 

due process requirement, a factual sufficiency review “is a creature of state law.” Id. A factual 

sufficiency review begins with the assumption that the evidence is legally sufficient to support 

the verdict. Id. Evidence that is legally sufficient may be factually insufficient if (1) the 

evidence supporting the conviction is “too weak” to support the jury’s verdict, or (2) considering 

the conflicting evidence, the jury’s verdict is “against the great weight and preponderance of the 

evidence. Id. (quoting Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)). In 

determining whether the evidence is “too weak” or “against the great weight and preponderance 

of the evidence, we must consider all of the evidence in a neutral light, and may only find the 

evidence factually insufficient when necessary to “prevent manifest injustice.” Laster, 275 

S.W.3d at 518 (quoting Watson, 204 S.W.3d at 414-15; Cain v. State, 958 S.W.2d 404, 407 (Tex. 

Crim. App. 1997)). 

In conducting a factual sufficiency review, we must bear in mind that the jury is the 

exclusive judge of the credibility of witnesses and the weight to be given their testimony. Jones 

v. State, 944 S.W.2d 641, 647 (Tex. Crim. App. 1996). Likewise, reconciling conflicts in the 

evidence is the jury’s exclusive province. Id. 

Orozco complains the evidence against him came from “biased witnesses, such as the 

complainant and her parents,” and much of that evidence was contradicted by an unbiased 

witness, J.T., the victim’s cousin. We have reviewed J.T.’s testimony and find it does not 

necessarily conflict with testimony presented by E.T. or her parents. A review of the evidence 

establishes J.T. was not really sure when she met Orozco or when the assault itself occurred. 
04-09-00456-CR

- 15 -

Moreover, even if her testimony conflicted with that of E.T. and her parents, the jury was entitled 

to resolve the conflicts, given the evidence, in favor of conviction. See id. Orozco also argues 

Eric is not to be believed because on the witness stand Eric “made up evidence” about finding a 

blood stain on the guestroom bed, when he never notified authorities about the stain, never took a 

picture of it, and never mentioned it until he was on the stand. While suspicious, it was up to the 

jury to believe or disbelieve Eric’s statements regarding the blood stain. See id. 

Orozco points out that the testimony from the SANE nurse, Mercer, and that of Dr. 

Kellogg was uncorroborated by any physical evidence. We agree. However, both testified that 

in cases like E.T.’s, when the exam occurs months after the alleged assault, no physical trauma 

may exist. The jury was entitled to believe their testimony. See id. 

Orozco urges that when the totality of the State’s evidence is considered, the State’s 

theory is without merit. Orozco argues it is unbelievable that he drank a case and a half of beer 

by himself in a little over five hours, as Eric testified. He further argues it is even more 

unbelievable to think that if Orozco had done as Eric testified, that Orozco would then have been 

able to go inside, carry E.T. upstairs, and assault her, without anyone being aware of what 

happened. However, we must reiterate that it was the jury’s province to weed the credible from 

the incredible and to believe or disbelieve some or all of a witness’s testimony. 

Given the applicable standard, we cannot say the evidence is too weak or so against the 

great weight and preponderance of the evidence so as to render the jury’s verdict manifestly 

unjust. See Laster, 275 S.W.3d at 518. E.T.’s testimony, as set forth in the background portion 

of this opinion, was sufficient to sustain the jury’s verdict in the case. We therefore overrule 

Orozco’s eighth issue. 
04-09-00456-CR

- 16 -

CONCLUSION

Based on the foregoing, we affirm the trial court’s judgment

Marialyn Barnard, Justice

Do Not Publish