AFFIRM; and Opinion Filed April 26, 2017.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-16-00331-CR

BENITO PENA JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 416th Judicial District Court

Collin County, Texas

Trial Court Cause No. 416-81691-2015

MEMORANDUM OPINION

Before Justices Francis, Lang-Miers, and Whitehill

Opinion by Justice Lang-Miers

Appellant Benito Pena Jr. appeals convictions for four counts of sexual assault of a child 

and two counts of indecency with a child. He contends the evidence is insufficient to support the 

convictions. We affirm the trial court’s judgments.

BACKGROUND

The complainant, MC, was 16 years old when her mother began a relationship with 

appellant in late 2013. Soon thereafter appellant and Mother began living together in Mother’s 

mother’s (Grandmother’s) house. Grandmother did not approve of the way in which appellant 

behaved toward Mother, which Grandmother characterized as physical, verbal, and emotional 

abuse. Grandmother asked appellant to leave about four months later. He did, but Mother and the 

children left with him and together they rented a home in another small town.
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Around August 2014, appellant made a “weird” request of MC. He asked her to wear 

pantyhose to school under her clothes, without underwear, so he could sell them. Appellant told 

MC he wanted her “extremity juices [to] get all over them” and that if she wore them with 

underwear she would get a yeast infection. She wore the pantyhose under her jeans or leggings. 

When she got home from school, appellant wanted to see the pantyhose. He made her take her 

pants off and sit on the couch. He spread her legs and said the pantyhose were “wet” and made 

her take them off and give them to him. The next time this happened, MC said there was more 

“touching.” Appellant rubbed his fingers on her vagina over the pantyhose. Then he ripped the 

pantyhose and put his fingers inside her vagina. She said his fingers were cold and it was 

“awkward” and she was “disgusted.” She said he then “got oral,” meaning “[h]e went down there 

[in her vagina] with his mouth.” She said it felt “[g]ross.” Then appellant got on top of her and 

had sex with her. MC described other incidents involving pantyhose and sexual assaults. At 

different times, appellant made her give him a “blow job,” made her rub his penis, touched her 

vagina with his fingers, and had sex with her. Each time they smoked marijuana and sometimes 

drank alcohol, which MC described as “[b]ad decisions.” MC said that from the beginning 

appellant took pictures of her wearing just the pantyhose and a shirt; he said he needed the 

pictures in order to sell the pantyhose. She never saw the pictures. Appellant told her she should 

not tell anyone because “it would ruin our lives” and “it would be [her] fault.”

MC testified that the abuse stopped in January 2015 because appellant and Mother broke 

up. About three months later, she decided to tell Mother what happened because she “figured 

they were done,” in other words, they “weren’t getting back together at all” and she knew 

appellant “wasn’t coming back” and she felt “safe enough to say something then.” Mother took 

MC to Grandmother’s house, and MC told Mother and Grandmother that appellant raped her. 

Grandmother called the police. 
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Officer Joshua Devore responded to the call. He took MC out on the porch away from 

Mother and Grandmother and talked to MC. He described MC’s demeanor as “very frightened 

and physically crying, emotional.” MC gave him “specific details about what happened to her.” 

He testified that he was “surprised at the amount of details that she gave” him. MC “seemed very 

authentic, she was very emotional like it was traumatizing. She was reliving it when she was 

telling me about it.” 

MC also went to the Children’s Advocacy Center where Lisa Martinez interviewed her 

for about an hour and a half. Martinez described the process of interviewing children and 

testified that she looked “for sensory details. What they felt, what they saw, what they heard, 

things like that. . . . I’m also looking for chronology within the incident that took place. . . . I’m 

looking for general details. Where did it happen? Who was the person that did it? Where was 

everyone else around? I’m also watching her demeanor and just how she’s communicating with 

me through her body language.” Martinez testified that MC gave her “many” general details 

about what happened and a chronology/date range, “multiple instances of things happening” with 

the ability to distinguish between those incidents, and she was able to keep those incidents 

straight when questioned about them later.

Sgt. Russell Driver, the lead investigator on the case, testified that he learned MC had 

kept some of the pantyhose. He collected the pantyhose as evidence and submitted a pair with a 

ripped crotch for DNA testing. The lab results showed the pantyhose contained skin cells 

belonging to MC and semen cells belonging to appellant. The probability of selecting an 

unrelated person who matched the skin cells or the semen cells was one in over the population of 

Earth.

The jury convicted appellant and sentenced him respectively to 16, 10, 14, and 10 years 

in prison on the sexual assault convictions, and 5 years on each indecency with a child 
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conviction.1 The jury also assessed one $10,000 fine. In two issues on appeal, appellant argues 

that the evidence is insufficient to support the convictions. 

STANDARD OF REVIEW

We review a challenge to the sufficiency of the evidence under the well-established 

standards set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Wilson v. State, 448 S.W.3d 418, 

425 (Tex. Crim. App. 2014). We view the evidence in the light most favorable to the verdict and 

determine whether a rational factfinder could have found all the elements of the offense beyond a 

reasonable doubt. Id. “We will uphold the verdict unless a rational factfinder must have had 

reasonable doubt with respect to any essential element of the offense.” Id. In our review, we are 

mindful that the jury is the sole judge of the credibility and weight of the evidence. Montgomery 

v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012).

DISCUSSION

Appellant was convicted of four counts of sexual assault of a child under penal code 

section 22.011(a)(2)(A) and two counts of indecency with a child under penal code section 

21.11(a)(1). See TEX. PENAL CODE ANN. §§ 21.11(a)(1), 22.011(a)(2)(A) (West 2011). Appellant

does not challenge the evidence as to any specific element of these offenses. Instead, he argues 

that no rational jury could have convicted him beyond a reasonable doubt because, in essence, 

the evidence of his guilt was not credible.

For example, appellant cites evidence that Grandmother offered to pay MC to make false 

allegations against appellant. He argues Grandmother “was unsuccessful in her attempts to 

payoff MC until March 31, 2015” because Mother and appellant had an ongoing relationship and 

they “were all relying on Appellant in many, many way[s] and for many, many things[.]” Once 

 1 The jury found appellant not guilty on one count of sexual performance by a child. See TEX. PENAL CODE ANN. § 43.25(d) (West 2016).
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Mother and appellant were no longer together, however, he argues suddenly he was “a long-time 

rapist.” 

Appellant acknowledges that the jury is the sole judge of the credibility of the evidence, 

but he argues that this case is “quite uncommon” in that it involves “multiple and unrelated 

parties, reporting at different times about different events, that all share one glaring and troubling 

detail” and that is, that Grandmother hated appellant “so much that she had in the past and 

continued to the then current day encouraged MC to report false allegations of sexual abuse 

against her by Appellant so Appellant could be kicked out of the picture.”

The jury heard the testimony and reviewed the evidence. The evidence was conflicting

about what Grandmother did or said with regard to asking MC to falsely accuse appellant of 

sexually assaulting MC, and at the time MC told Mother and Grandmother about what appellant 

did to her, appellant was already “out of the picture.” The jury obviously believed MC’s 

testimony and the physical evidence and resolved the conflict in favor of the State. We will not 

second guess that decision as it turns on the credibility and weight of the evidence. See 

Montgomery, 369 S.W.3d at 192. We resolve appellant’s two issues against him.

CONCLUSION

We affirm the judgments.

Do Not Publish

TEX. R. APP. P. 47.2(b)

160331F.U05

/Elizabeth Lang-Miers/

ELIZABETH LANG-MIERS

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

BENITO PENA JR., Appellant

No. 05-16-00331-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 416th Judicial District 

Court, Collin County, Texas

Trial Court Cause No. 416-81691-2015.

Opinion delivered by Justice Lang-Miers. 

Justices Francis and Whitehill participating.

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

Judgment entered this 26th day of April, 2017.